IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.06.2011 CORAM THE HONOURABLE MR. JUSTICE K.CHANDRU W.P.NO.25706 OF 2010 AND M.P.NO.1 OF 2010 N.Pasupathy ... Petitioner VS. 1.The Deputy Inspector General of Police Disciplinary Authority Villupuram Range, Villupuram. 2.The Deputy Superintendent of Police Viruthachalam. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records of Charge Memo P.R.No.111/10 under Rule 3(b) dated 14.10.2010 on the file of the 1st respondent received through the 2nd respondent in Memo C.No. D2/13829/2010 dated 22.10.2010 and quash the same as null and void and direct the respondents to defer the proceedings till the outcome of the result before the Chief Judicial Magistrate Court relating to Cr.No.RC/46/07/POL/CC-II V & C dated 16.10.2007. For Petitioner : Mr.K.M.Vijayan Senior counsel for M/s.K.M.Vijayan Associates For Respondents : Ms.C.Devi Government Advocate O R D E R Heard the arguments of Mr.K.M.Vijayan, learned Senior Counsel appearing for M/s.K.M.Vijayan Associates and Ms.C.Devi, learned Government Advocate taking notice for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner has filed the present writ petition seeking to set aside the charge memo dated 14.10.2010 framed under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 (shortly "the Rules") in P.R.No.111 of 2010 and also for a consequential direction to defer the proceedings till the outcome of the case pending before the Chief Judicial Magistrate, Tiruvallur, in Cr.No.RC/46/07/POL/CC-II V & C dated 16.10.2007. 3.The petitioner was working as an Inspector of Police, in Viruthachalam Circle, Cuddalore District. A criminal case was lodged by the Vigilance and Anti-Corruption, Chennai City – II Detachment, Chennai against the petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. The petitioner's house was raided and incriminating documents showing disproportionate assets found in his house were annexed. On the basis of these materials, F.I.R was registered. Consequent on the registration of F.I.R and pending criminal investigation, the petitioner was placed under suspension by the first respondent – Deputy Inspector General of Police, Villupuram Range. As the petitioner was also reached the age of superannuation on that date, another order was passed retaining him in service with a view to conclude the proceedings and he was not allowed to retire from service. 4.The petitioner filed a writ petition in W.P.No.12124 of 2010 challenging both the orders. This Court dismissed the writ petition by an order dated 11.06.2010. Though the petitioner challenged the freezing of his bank account and the sealing of his bank locker before this Court in a petition under Section 482 Cr.P.C., subsequently on a direction issued by this Court, the Inspector of Police, Vigilance and Anti Corruption, Chennai City – II Detachment, Chennai refused to de-freeze the accounts and permitted the petitioner to operate the accounts. Even while the investigation is under progress, a charge memo was issued by the first respondent under Rule 3(b) of the Rules. The first charge was the petitioner purchased the immovable properties contrary to the Tamil Nadu Police Services Conduct Rules. The second charge relates to not informing about the purchase of the movable properties in the form of Kisan Vikas Patras, National Savings Certificates and not submitting property returns regarding assets and liabilities. The petitioner was asked to give explanation in respect of these commissions and omissions. Instead of submitting his explanation, the petitioner has rushed to this Court challenging the charge memo. 5.Pending admission, this Court granted an order of status quo on 01.03.2011. On notice from this court, the first respondent has filed a counter affidavit dated 05.04.2011. 6.The main contention of the petitioner is that if the criminal case and the departmental enquiry were allowed to proceed simultaneously, it jeopardize his defence before the criminal case, https://hcservices.ecourts.gov.in/hcservices/ which is violative of the constitutional protection directly against the accused from incriminating himself and besides that very same issue, a person cannot be punished twice. 7.In the counter affidavit filed by the respondents, the constitutional infringement pleaded by the petitioner were squarely denied. It is stated that the enquiry was relating to violation of the Conduct Rules and it has nothing to do with the criminal case pending before the appropriate Court. In paragraphs 9 and 14 of the counter affidavit, it was averred as follows: "9..... But the present charge in departmental proceedings relates to his irregulations and procedural errors in not informing the transaction as required under Tamilnadu Subordinate Police Officer's Conduct Rules 1964. Thus he was not prosecuted for the same offence more than once. The petitioner's liberty to examine all witnesses or cross examine before the competent Court or during the departmental enquiry is not denied. 14....... it is not correct to say that petitioner's participating in the departmental proceedings at this stage will prejudice his right to defend prior to the trial of the case before the Chief Judicial Magistrate Court. The departmental proceedings relate to some minor omissions on the part of the delinquent committed in the department procedures. The case is related to criminal case which is quite different." 8.Notwithstanding the stand of the respondents, it was argued by the learned senior counsel for the petitioner that the Supreme Court in Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd., and another reported in 1999 (3) SCC 679 has held that if the evidence in both the proceedings are common, without there being any variance, it is desirable to stay the departmental proceedings. Subsequently, the dictum laid down in Capt. M.Paul Anthony's case came to be further explained in judgment in State Bank of India Vs. R.B.Sharma reported in 2004 (7) SCC 27. In that case, the Supreme Court laid down the guidelines for staying the departmental proceedings pending criminal trial. In this context, it is necessary to refer to the relevant paragraphs: "(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. https://hcservices.ecourts.gov.in/hcservices/ (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.” 9.But after setting out the guidelines in the very same case, the Supreme Court held that unless a charge sheeted employee shows substantially that the entire matter in the departmental proceedings and before the criminal court is the same, the question of interdicting departmental enquiry may not arise. In this context, it is necessary to refer to the judgment of the Supreme Court in Indian Overseas Bank vs. P. Ganesan reported in 2008 (1) SCC 650. It is necessary to refer to the following passages found in the said judgment in paragraphs 23 and 24, which are 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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." 10.It is needless to state that the respondents in their counter affidavit had clearly stated that the departmental proceedings will be confined itself only to violation of the Conduct Rules. A Division Bench of this Court in The Deputy Inspector General of Police, Coimbatore Range and another Vs. P.Shanmugasundaram in W.A.No.343 of 2008 (decided on 14.08.2008) had held that only in cases where there is a criminal case will have a direct barring on the departmental enquiry, the question of staying the departmental enquiry will arise. It is further held that the criminal case against the government employee related to Section 498-A IPC read with Section 4 of the Dowry Prohibition Act and therefore, granted interim stay only in respect of the matter relating to the criminal case. But in that very same case, since the Government servant also involved himself in bigamy, infringing Rule 19 of the Tamil Nadu Government Servants Conduct Rules, 1973, the Court did not grant stay in respect of these proceedings, as can be seen from para 8 of the order, which is as follows: "8.... Charge Nos.2 and 3 of the departmental proceeding being not based on identical or similar set of facts and for that as the delinquent employee (respondent) is not required to place any evidence of material, which he may use in the criminal case, the departmental proceeding in regard to those two charges, viz., charge Nos.2 and 3, can proceed simultaneously as there is no bar in their being conducted simultaneously." 11.There is yet another aspect of the matter involved herein. The petitioner before the Criminal Court was charged for having disproportionate assets. Unlike the other offences arising out of Indian Penal Code and other criminal offences in a matter relating to the offence relating to disproportionate assets under the Prevention and Corruption Act, 1988, the accused cannot keep silent and it is his bounden duty to explain his sources of income and to satisfy the Court that there are no disproportionality to the wealth accumulated by him. These lines of judgment were based upon the https://hcservices.ecourts.gov.in/hcservices/ constitutional guarantee granted under Article 20(3) of the Constitution of India of India wherein it has been stipulated "no person accused of any offence shall be compelled to be a witness against himself". Such a stand cannot be taken in a fictional offence. In this case, it is unnecessary to go into the said issue. Had the respondents themselves confined their enquiry, inflictive of the conduct rules relating to declaration of assets and intimation of acquisition of properties, may not arise. Therefore, the request pleaded by the petitioner to stall the departmental enquiry does not arise in this case. The stipulation requiring a Government servant to intimate the purchase of property is not an empty formality and any violation will have to be viewed strictly by the authorities. 12.In this context, it is necessary to refer to the judgment of the Supreme Court in Praveen Bhatia Vs. Union of India reported in 2009 (4) SCC 225 wherein the Supreme Court had forewarn the authorities being conversant in dealing with such matters. In this regard, it is relevant to extract the following passage found in paragraphs 12, 13 and 14 of the judgment. "12...... 17.The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word ‘misconduct’ is not capable of precise definition. But at the same time though incapable of precise definition, the word ‘misconduct’ on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. 18.In Union of India v. Harjeet Singh Sandhu in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be ‘misconduct’ under Rule 14. https://hcservices.ecourts.gov.in/hcservices/ 19.In Baldev Singh Gandhi v. State of Punjab it was held that the expression ‘misconduct’ means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc. 20.Similarly, in State of Punjab v. Ram Singh it was held that the term ‘misconduct’ may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. 21.‘Misconduct’ as stated in Batt’s Law of Master and Servant (4th Edn. at p.63) is ‘comprised positive acts and not mere neglects or failures’. The definition of the word as given in Ballentine’s Law Dictionary (148th Edn.) is ‘A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.’ 22.It may be generally stated that the conduct rules of the Government and public sector corporations constitute a code of permissible acts and behaviour of their servants. 23.The scheme of the Conduct Rules, almost invariably, is to first of all enunciate a general rule of conduct and behaviour followed by specific prohibitions and restrictions. For example, Rule 3 of the Central Civil Services (Conduct) Rules, 1964 which occurs under the heading ‘General’ provides that every Government servant shall at all times: ‘(i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a government servant.’ ” The aforesaid aspects were highlighted in M.M. Malhotra v. Union of India4, SCC at pp.362-63, paras 16-23. 13.The power of the court to interfere with the quantum of punishment is extremely restricted and only when the relevant factors have not been https://hcservices.ecourts.gov.in/hcservices/ considered the court can direct reconsideration or in an appropriate case to certain litigation, indicate the punishment to be awarded; and that can only be in very rare cases. 14.It is evident from the record that the prescribed period for filing property return is six months and though the appellant was aware of the requirement he did not choose to file any return; even during the course of enquiry no return was filed and ultimately after show-cause notice was issued it was filed. That being so there is no merit in this appeal which is accordingly dismissed." 13.In view of the above, there is no case made out to grant the relief prayed for by the petitioner. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar TK To 1.The Deputy Inspector General of Police Disciplinary Authority Villupuram Range, Villupuram. 2.The Deputy Superintendent of Police Viruthachalam. + 1 cc to M/s. M. Vijayan, SR.32666 W.P.NO.25706 OF 2010 VSN(CO) Eu 14.6.11 https://hcservices.ecourts.gov.in/hcservices/