P.Chinnadurai v. The Inspector General of Registration, Chennai
Case at a glance
Outcome
Acquitted
Normally where the accused is acquitted honourably andcompletely exonerated of the charges it would not beexpedient to continue a departmental inquiry on the verysame charges or grounds or evidence, but the fact remains,however, that merely because the accused is acquitted, thepower of the authority concerned to continue thedepartmental inquiry is not taken away nor is itsdirection [discretion] in
Provisions considered
- Constitution of India arts. 20, 21, 226
- Prevention of Corruption Act, 1988 s. 7(1)(a)
- Indian Penal Code, 1860 ss. 147, 329, 353
- Maintenance ofInternal Security Act
Key paragraphs
- Para 2121. In another case, namely, Depot Manager, A.P. SRTCv. Mohd. Yousuf Miya (1997 (2) SCC 699 = 1997 SCC (L & S)548 = AIR 1997 SC 2232) again it was held that there is nobar to proceed simultaneously with the departmentalenquiry and trial of a…
- Para 2222. The conclusions which are deducible from variousdecisions of this Court referred to above are: (i) Departmental proceedings and proceedings in acriminal case can proceed simultaneously as there isno bar in their being conducted simultaneously, thoughseparately. (ii) If the departmental proceedings and thecriminal case are…
- Para 2929. Accordingly, the impugned revised charge memo, dated17.11.2008, in respect of charge Nos.1 and 4, alone, are quashed, andit is left open for the appropriate authority/Government to passorders in respect of non-proven charge Nos.2 and 3 and communicatethe decision to the petitioner-delinquent expeditiously.
Judgment
2006 (5) SCC 446 (G.M.Tank Vs. State of Gujarat). The allegedoccurrence is said to have taken place in 2001, for which, a chargememo was issued after a lapse of seven years and after the petitionerwas acquitted in the criminal case. Hence, there is a long delay, which remains unexplained and the revised charge memo itself ismotivated and has been issued with ulterior motive to deny promotionto the petitioner, besides after acquittal of the criminal case. Unless the earlier charge memo issued in 2004 is cancelled, anothercharge for the same set of allegations, cannot be issued. Hence, thepetitioner has approached this Court to quash the impugned chargememo.3. The petitioner challenges the impugned charge memo on thefollowing grounds: (i) The impugned charge memo is contrary to the rules and is inviolation of the principles of natural justice. (ii) The impugned charge memo is not maintainable either in lawor on facts.
(iii) The impugned revised charge memo cannot be issued, when onthe same set of allegations, another charge memo had been issued on28.4.2004 and the same has not been cancelled till date. A revisedcharge memo cannot be issued, unless the earlier charge memo iscancelled. Hence, the present charge memo is not sustainable and thesame is liable to be quashed. (iv) With regard to charge Nos.1 and 4 in the revised charge memodated 17.11.2008, the learned Magistrate has already recorded afinding that the petitioner is not guilty of charges after trial. Thefindings recorded in a judicial forum, cannot be watered down in thedepartmental enquiry, which has been instituted for the same set ofallegations. The Supreme Court, in the said case reported in 1999 (3)SCC 679 (M.Paul Anthony Vs. Bharat Gold Mines Ltd) held that if thereis an acquittal in the criminal case, the charge memo on the same setof allegations, is not sustainable and if it is proceeded, it willlead to miscarriage of justice.
The first charge against thepetitioner is that he demanded and accepted illegal gratificationfrom the complainant Muthukumar through the second accused SureshBabu, who is alleged to have been employed by the petitioner forgiving illegal gratification. The learned Magistrate in Spl.C.C.No.16of 2003, recorded a finding on 26.12.2007 that the complainantMuthukumar due to vengeance, preferred a false complaint against thepetitioner for obvious reasons and also further held that there wasno connection between the petitioner and the second accused SureshBabu. When there is a positive finding on the charges, proceedingagainst the petitioner again in the departmental enquiry on the sameset of allegations, through a revised charge memo, is not sustainableand the same is liable to be quashed. (v) The revised charge memo dated 17.11.2008 is ill-advised andhas been issued after acquittal in the criminal case.
It is admittedfact that the earlier charge memo dated 28.4.2004 has not beencancelled. Hence, the revised charge memo containing same charges isnot sustainable and the same is liable to be quashed. Moreover, the https://hcservices.ecourts.gov.in/hcservices/ same charges have been issued after a lapse of seven years and thereason for the delay has not been explained. (vi) In respect of charge Nos.2 and 3 relating to the possessionof Rs.1,200/- and Rs.53,000/- which is unable to account for as perthe charge memo, the petitioner has not been issued with any memoasking him to explain about the possession of the amount statedsupra. In the absence of any memo calling for explanation for thepossession of the amount, a charge memo under Rule 17(b) of the saidRules, for a mere possession, cannot be sustained. There is nopreliminary enquiry conducted by the Department before issuance ofthe charge Nos.2 and 3 in the impugned charge memo.
In all caseswhere a person is alleged to have been in possession of certainamount, he has to be issued with a memo calling for explanation andafter receiving the reply, if the authorities are not satisfied withthe reply, then only a charge memo can be issued. In respect ofcharge Nos.2 and 3, neither a memo nor a show cause notice, had beenissued to the petitioner, before issuing a charge memo. Hence, chargeNos.2 and 3 are premature and liable to be quashed. (vii) There is a long delay in issuance of the revised chargememo dated 17.11.2008 for an alleged occurrence which took place inthe year 2001. There is no bar for proceeding against the petitionersimultaneously for the same set of allegations. In respect of chargeNos.2 and 3, a charge memo came to be issued after a lapse of sevenyears, which remains unexplained, besides after an acquittal isrecorded by the criminal Court on merit. The learned Magistrate hasordered the return of the amount to the petitioner after recording afinding of innocence.
There is a delay of more than seven years andthe delay remains unexplained and on the ground of delay alone, theimpugned charge memo is liable to be set aside. (viii) The charge memo came to be issued only to harass thepetitioner after acquittal in the criminal case. The petitioner'spromotion had been denied on account of the criminal case as well asthe charge memo. Hence, the impugned charge memo is ill-advised andthe same is liable to be quashed. When on the same set ofallegations, an earlier charge memo has been issued in respect ofcharge Nos.1 and 4 and the same has been challenged before this Courtin W.P.No.31344 of 2004 and stayed by this Court, the revised chargememo is unsustainable and the same is liable to be quashed. (ix)The respondent may proceed with the revised charge memo and record afinding contrary to the findings recorded in the criminal case. Unless it is quashed, the petitioner will be put to irreparable lossand great hardship.
4. In the counter affidavit filed by the respondent, it isaverred as follows: (a) The Writ Petition is not maintainable either in law or onfacts. (b) The petitioner entered into Government service as Sub-Registrar Grade-II on 22.8.1986 at the Office of the DistrictRegistrar, Coimbatore; thereafter, he was promoted as Grade-I Sub- https://hcservices.ecourts.gov.in/hcservices/ Registrar with effect from 31.3.1997. As on date, the petitioner isworking as Sub-Registrar (Administration) in the office of the DeputyInspector General of Registration, Salem. While discharging duties as Sub-Registrar (Guideline), Erode District, on 15.6.1998, thepetitioner committed misconduct. Hence, he was issued with a chargememo bearing No.49429/B1/2001, dated 28.4.2004 with the followingcharge: "While Tr.P.Chinnadurai, Sub Registrar, Guideline, O/othe District Registrar, Erode has demanded bribe money ofRs.3000/- to inspect the property and to assess the value ofland and building of a partition deed which was presented bythe complainant Tr.Muthukumar on 19.10.2001 and receivedRs.1000/- through a private individual Tr.Suresh Babu in thepresence of Tr.Mohan and he was arrested by Vigilance and Anti-corruption Department and has thus failed to maintainabsolute integrity and devotion to duty in contravention of Rule 20(1) of the Tamil Nadu Government Servants ConductRules, 1973."(c) The petitioner submitted his explanation dated 22.9.2004.
TheDeputy Inspector General of Registration, Coimbatore, was appointedas the Enquiry Officer. The petitioner had not allowed to proceedwith the enquiry citing pendency of Criminal Case by filingW.P.No.31344 of 2004 and by obtaining interim stay, vide order dated29.10.2004 in W.P.M.P.No.37988 of 2004 in W.P.No.31344 of 2004.(d) The respondent issued a revised charge memo bearingNo.49429/B1/2001, dated 17.11.2008 with the following charges: "Charge No.1:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode caused the delay of six monthsfor taking action and to finalize the valuation proposal inrespect of file No.507/2000 dt.26.12.2000 of Sub-RegistrarOffice, Kodumudi and therefore caused delay in registrationof the documents relation to the complainantTr.D.Muthukumar with the aim of extracting money from thecomplainant. On 19.10.2001 in pursuance of his earlierdemand Tr.P.Chinnadurai instructed his unauthorizedemployee Tr.V.Suresh Babu, a private person to receive thebribe of Rs.1000/- from the complainant Tr.D.Muthukumar andTr.V.Suresh Babu with knowledge received the said bribeamount from the complainant for releasing the document.
Charge No.2:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode at the time of trap between 13.30hours and 17.35 hours on 19.10.2001 at his seat at theoffice of the District Registrar, Erode was found withunaccounted money of Rs.1200/- kept in his pocket, forwhich he could not satisfactorily account for. Charge No.3: https://hcservices.ecourts.gov.in/hcservices/ Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode has kept an unaccounted money ofRs.53,000/- at his residence at No.26, Bharathi Park, Street-2, Coimbatore-43 which was detected and seizedduring the house search conducted on 19.11.2001 between4.15 p.m. for which he could not satisfactorily accountfor. Charge No.4:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode employed a private individualTr.V.Suresh Babu unauthorisedly to perform official work athis seat and allowed him to make entries in the officerecords.
Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode while discharging his officialduties failed to maintain absolute integrity and devotionto duty in contravention of Rule 20(1) of the Tamil NaduGovernment Servants Conduct Rules, 1973."(e) Against this charge memo, the petitioner has filed thepresent Writ Petition and obtained interim order, by order dated23.12.2008 in M.P.No.2 of 2008 in W.P.No.30503 of 2008.(f) The petitioner caused delay by six months to take action andto finalise the valuation proposal in respect of File No.507/2000,dated 26.12.2000 of Sub-Registrar Office, Kodumudi, with the aim toextract money from the executant of the document (partition deed, dated 19.5.2000) bearing Pending Document No.P.30/2000 (DocumentNo.1194/2000). The petitioner demanded and extracted Rs.1,000/- fromthe said executant. The petitioner employed one V.Suresh Babu, aprivate person to do official work.
Pursuant to the trap laid, thepetitioner was caught red-handed while accepting the bribe amount. The amounts were recovered from him and from his house. Thepetitioner was arrested on 19.10.2001 and remanded to judicialcustody till 2.11.2001. The petitioner was released on bail on2.11.2001. A criminal case was registered against the petitioner inC.C.No.16 of 2003 and the same ended in acquittal, vide order dated26.12.2007.(g) The issuance of revised charge memo dated 17.11.2008 isvalid, legal and different from the earlier charge memo dated28.4.2004. The alleged procedure stated by the petitioner inparagraph 8 of his affidavit, is not usual procedure followed. It iswell settled proposition of law that Departmental DisciplinaryProceedings are different from the criminal case. The charges in therevised charge memo dated 17.11.2008 are different and are liable tobe upheld. The delay, if any, in issuing the revised charge memo isdue to the conduct of the petitioner in stalling the conducting ofthe enquiry.
The petitioner cannot shift the entire blame on the Department. The revised charge memo is not motivated and is notidentical to the earlier charge memo. The necessity to issue freshcharge memo arose in view of the fact that the other charges were not https://hcservices.ecourts.gov.in/hcservices/ included in the earlier charge memo and it was framed in accordancewith the Govt. Lr(2D).No.91, Commercial Taxes and RegistrationDepartment, dated 11.6.2008.(h) The revised charge memo is not contrary to Rules and not inviolation of the principles of natural justice. It is always open tothe petitioner to submit his explanation to the revised charge memoand participate in the enquiry and prove his innocence. The revisedcharge memo is valid, legally sustainable, maintainable both in lawand on facts and has to be upheld. (i) The revised charge memo is in supersession of the earliercharge memo dated 28.4.2004.
The very words "Revised charge memo"indicate the same. The revised charge memo is not the same as that ofthe earlier charge memo and contains different charges. Hence, therevised charge memo is liable to be upheld. (j) The charges in the revised charge memo are different. TheDepartmental Disciplinary Proceedings that have been initiated, aredifferent from the criminal case that had been concluded. Thepetitioner attempted to mislead this Court by inter-connecting the Departmental Disciplinary Proceedings with the concluded criminalcase, when in fact, both are entirely different. The charge memo isnot based on the criminal case, but for the misconduct committed bythe petitioner based on the Government Service Rules. By conductingenquiry, there will be no miscarriage of justice. The charges in therevised charge memo relate to dereliction of duty by not discharginghis duty in time, for possession of unaccounted amounts of money andfor employing an outsider to do official as well as his personalworks without having power to do so.
Hence, the revised charge memocan be sustained and is liable to be upheld. (k) The acquittal of the petitioner from the criminal case, cannot be a bar for initiation of Departmental DisciplinaryProceedings. The revised charge memo dated 17.11.2008 is insupersession of the earlier charge memo dated 28.4.2004 and containsdifferent charges. There is no delay in issuing the revised chargememo, and the delay, if any, was due to the conduct of thepetitioner. Hence, the revised charge memo is not ill-advised and isto be sustained and liable to be upheld. (l) No show cause notice or prior memo is necessary to charge aperson of misconduct. Possession of unaccounted money is a seriousmisconduct as per Government Service Rules and no prior memo isnecessary for issuing a charge memo under Rule 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules. The preliminaryenquiry is not necessary. The procedure alleged by the petitioner isimaginary and according to his own whims and fancies and theallegations to quash the charges based on such misconceived norms, have to be rejected "in limine".
The charges are liable to be upheld. (m) There is no delay and there is no bar in conducting thedepartmental disciplinary proceedings simultaneously during thependency of the criminal case. In the case on hand, it is thepetitioner who had not allowed to proceed with the departmentaldisciplinary proceedings, citing pendency of criminal case. Hence, https://hcservices.ecourts.gov.in/hcservices/ the revised charge memo is liable to be upheld. (n) The charge memo has been issued for the misconduct committedby the petitioner and not to harass him. The petitioner has notreached the zone of consideration for promotion. The charge memo isnot ill-advised and liable to be upheld. The revised charge memo hasbeen issued in supersession of the earlier charge memo and the sameis sustainable and liable to be upheld. (o) The departmental disciplinary proceedings are different fromthe criminal case. The allegations of the petitioner are imaginaryand unfounded.
(p) The petitioner has not made out any case to sustain this WritPetition. The allegations of the petitioner, are baseless andunfounded. The petitioner has been charged for his misconduct and canprove his innocence in the enquiry. This Writ Petition is prematureand misconceived. The Writ Petition has to be dismissed as notmaintainable with costs. The petitioner has not substantiated hiscase with acceptable evidence. The petitioner mislead this Court andobtained the interim order of stay. By the continuance of interimstay, the Department is put to untold hardship, since they could notproceed with the enquiry. Hence, it is just, necessary and imperativeto vacate the interim order of stay in the interest of justice anddismiss the Writ Petition.5. In the additional counter affidavit filed by the respondent, it is stated as follows: (i) The petitioner Tr.P.Chinnadurai, District Registrar, whileworking as Sub-Registrar (Guidelines) at District Registrar's Office, Erode, was trapped and arrested by the Director of Vigilance and Anti-Corruption officials on 19.10.2011 and he was issued charge MemoNo.49429/B1/2001, dated 28.4.2004 regarding two allegations.
A case(No.16 of 2003) was filed against the petitioner in the ChiefJudicial Magistrate's Court and the Court has ordered that thepetitioner is acquitted of the case. Therefore, the petitioner wasrelieved from the Court proceedings. (ii) The Government instructed to initiate departmentaldisciplinary action against the petitioner for the lapses statedbelow: (a) received bribe amount of Rs.1,000/- from Tr.Muthukumar. (b) Rs.1,200/- of unaccounted money possessed. (c) Rs.53,000/- of unaccounted money found in his residence. (d) To have allowed private individual Tr.V.Suresh Babu to handlethe office records. Hence, the charge memo was issued under Rule 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules, for the abovesaidrevised charges. (iii) The petitioner filed this Writ Petition against theabovesaid charge memo and obtained stay order in respect of chargeNos.1 and 4 of the charge memo. https://hcservices.ecourts.gov.in/hcservices/ (iv) Meanwhile, W.P.No.1277 of 2009, filed by the petitioner, wasdisposed of by this Court on 15.9.2009, directing as follows, byfavouring the delinquent: "The writ petition stands allowed with direction tothe respondents to include the name of petitioner in thepanel for District Registrar for the year 1999-2000 andconfer the benefit of promotion as District Registrar tothe petitioner on the date of promotion of his junior asper G.O.Ms.No.35, Commercial Taxes (H1) Department, dated3.4.2003, viz., 30.4.2003, if there are no other legalimpediments and also grant all benefits thereon and suchorder shall be passed within a period of 16 weeks from thedate of receipt of a copy of this order. ..."(v) On compliance with the said order, the petitioner waspromoted as District Registrar as per G.O.(2D).No.113, CommercialTaxes and Registration Department, dated 9.8.2010 without prejudiceto the disciplinary proceedings under Rule 17(b) of the Tamil NaduCivil Services (Discipline and Appeal) Rules, in Inspector General of Registration Charge Memo No.49429/B1/2001, dated 28.4.2004 pendingagainst the petitioner.
(vi) At this juncture, enquiry report from the Enquiry Officer(Deputy Inspector General of Registration), Coimbatore, has beenreceived in respect of charge Nos.2 and 3, stating that the chargeswere not proved. Since the petitioner is a State level officer, theenquiry report was forwarded to the Government with its original filefor further course of action. (vii) There is no bar in conducting the departmental disciplinaryproceedings simultaneously during the pendency of the criminal case. It is the petitioner who had not allowed to proceed with thedepartmental disciplinary proceedings, citing pendency of thecriminal case. Hence, the revised charge memo is liable to be upheld. (viii) Departmental disciplinary proceedings are different fromthe criminal case. The allegations of the petitioner are imaginaryand unfounded. The petitioner has not made out any case so as tosustain this Writ Petition. The petitioner has been charged for hismisconduct and can prove his innocence in the enquiry.
Hence, therespondent pray for dismissal of the Writ Petition.6. Mr.K.Venkataramani, learned Senior Counsel appearing for thepetitioner in his first limb of submissions, contended that theimpugned revised charge memo is vitiated in law, as there is aninordinate delay in initiation and conclusion of the departmentalproceedings. For the occurrence which took place in 2000, the firstcharge memo was issued in 2004, and then the present impugned revisedcharge memo had been issued on 17.11.2008. Secondly, the petitionerassails the charge memo on the ground that for the same set ofallegations, earlier, a charge memo was issued on 28.4.2004 which hasnot been ratified/cancelled till date and therefore, the present https://hcservices.ecourts.gov.in/hcservices/ revised impugned charge memo is not sustainable, unless the earliercharge memo is cancelled/ratified. Thirdly, according to the learnedSenior Counsel appearing for the petitioner, the charges in respectof Charge Nos.1 and 4 are the subject matter of criminal case, whichended in acquittal and with regard to the charges in Charge Nos.2 and3, the respondents-Department proceeded and concluded thetrial/enquiry and when the respondent take a stand that the chargeshave not been proved, it is not proper on the part of the respondentto keep the petitioner without any conclusion of the departmentalproceedings and continue with the enquiry/charges and keep the samein cold storage.
In support of his contentions, learned SeniorCounsel appearing for the petitioner relied on the followingdecisions: (a) 1999 (3) SCC 679 : Capt.M.Paul Anthony v. Bharat GoldMines Ltd.:“19. The entire case-law was reviewed once again bythis Court in State of Rajasthan Vs. B.K. Meena (1996 (6)SCC 417 = 1996 SCC (L & S) 1455 = AIR 1997 SC 13 = 1997 (1)LLJ 746) wherein it was laid down as under: (SCC pp. 422-23, para 14)"14. It would be evident from the above decisionsthat each of them starts with the indisputableproposition that there is no legal bar for bothproceedings to go on simultaneously and then say thatin certain situations, it may not be 'desirable','advisable' or 'appropriate' to proceed with thedisciplinary enquiry when a criminal case is pendingon identical charges. The staying of disciplinaryproceedings, it is emphasised, is a matter to bedetermined having regard to the facts andcircumstances of a given case and that no hard andfast rules can be enunciated in that behalf.
The onlyground suggested in the above decisions asconstituting a valid ground for staying thedisciplinary proceedings is that ‘the defence of theemployee in the criminal case may not be prejudiced’.This ground has, however, been hedged in by providingfurther that this may be done in cases of grave natureinvolving questions of fact and law. In our respectfulopinion, it means that not only the charges must begrave but that the case must involve complicatedquestions of law and fact. Moreover, 'advisability','desirability' or 'propriety', as the case may be, hasto be determined in each case taking intoconsideration all the facts and circumstances of thecase. The ground indicated in D.C.M. (Delhi Cloth &General Mills Ltd. Vs. Kushal Bhan) (AIR 1960 SC 806 =1960 (3) SCR 227 = 1960 (1) LLJ 520) and Tata OilMills (Tata Oil Mills Co. Ltd. Vs. Workmen (AIR 1965SC 155 = 1964 (7) SCR 555 = 1964 (2) LLJ 113) is also https://hcservices.ecourts.gov.in/hcservices/ not an invariable rule.
It is only a factor which willgo into the scales while judging the advisability ordesirability of staying the disciplinary proceedings. One of the contending considerations is that thedisciplinary enquiry cannot be--and should not be--delayed unduly. So far as criminal cases areconcerned, it is well known that they drag onendlessly where high officials or persons holding highpublic offices are involved. They get bogged down onone or the other ground. They hardly ever reach aprompt conclusion. That is the reality in spite ofrepeated advice and admonitions from this Court andthe High Courts. If a criminal case is unduly delayedthat may itself be a good ground for going ahead withthe disciplinary enquiry even where the disciplinaryproceedings are held over at an earlier stage. Theinterests of administration and good government demandthat these proceedings are concluded expeditiously. Itmust be remembered that interests of administrationdemand that undesirable elements are thrown out andany charge of misdemeanour is enquired into promptly.
The disciplinary proceedings are meant not really topunish the guilty but to keep the administrativemachinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in aprompt conclusion of the disciplinary proceedings. Ifhe is not guilty of the charges, his honour should bevindicated at the earliest possible moment and if heis guilty, he should be dealt with promptly accordingto law. It is not also in the interest ofadministration that persons accused of seriousmisdemeanour should be continued in officeindefinitely, i.e., for long periods awaiting theresult of criminal proceedings. It is not in theinterest of administration. It only serves theinterest of the guilty and dishonest. While it is notpossible to enumerate the various factors, for andagainst the stay of disciplinary proceedings, we foundit necessary to emphasise some of the importantconsiderations in view of the fact that very often thedisciplinary proceedings are being stayed for longperiods pending criminal proceedings. Stay ofdisciplinary proceedings cannot be, and should not be,a matter of course. All the relevant factors, for andagainst, should be weighed and a decision takenkeeping in view the various principles laid down inthe decisions referred to above. " https://hcservices.ecourts.gov.in/hcservices/
This decision has gone two steps further than theearlier decisions by providing:1. The "advisability", "desirability" or "propriety"of staying the departmental proceedings "go into thescales while judging the advisability or desirability ofstaying the disciplinary proceedings" merely as one of thefactors which cannot be considered in isolation of othercircumstances of the case. But the charges in the criminalcase must, in any case, be of a grave and serious natureinvolving complicated questions of fact and law.2. One of the contending considerations would be thatthe disciplinary enquiry cannot-- and should not be--delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with thedisciplinary enquiry even though the disciplinaryproceedings were held over at an earlier stage. It wouldnot be in the interests of administration that personsaccused of serious misdemeanour should be continued inoffice indefinitely awaiting the result of criminalproceedings.
In another case, namely, Depot Manager, A.P. SRTCv. Mohd. Yousuf Miya (1997 (2) SCC 699 = 1997 SCC (L & S)548 = AIR 1997 SC 2232) again it was held that there is nobar to proceed simultaneously with the departmentalenquiry and trial of a criminal case unless the charge inthe criminal case is of a grave nature involvingcomplicated questions of fact and law.
The conclusions which are deducible from variousdecisions of this Court referred to above are: (i) Departmental proceedings and proceedings in acriminal case can proceed simultaneously as there isno bar in their being conducted simultaneously, thoughseparately. (ii) If the departmental proceedings and thecriminal case are based on identical and similar setof facts and the charge in the criminal case againstthe delinquent employee is of a grave nature whichinvolves complicated questions of law and fact, itwould be desirable to stay the departmentalproceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in acriminal case is grave and whether complicatedquestions of fact and law are involved in that case, will depend upon the nature of offence, the nature ofthe case launched against the employee on the basis ofevidence and material collected against him duringinvestigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) https://hcservices.ecourts.gov.in/hcservices/ above cannot be considered in isolation to stay thedepartmental proceedings but due regard has to begiven to the fact that the departmental proceedingscannot be unduly delayed. (v) If the criminal case does not proceed or itsdisposal is being unduly delayed, the departmentalproceedings, even if they were stayed on account ofthe pendency of the criminal case, can be resumed andproceeded with so as to conclude them at an earlydate, so that if the employee is found not guilty hishonour may be vindicated and in case he is foundguilty, the administration may get rid of him at theearliest.”“34. There is yet another reason for discarding thewhole of the case of the respondents. As pointed outearlier, the criminal case as also the departmentalproceedings were based on identical set of facts, namely,"the raid conducted at the appellant's residence andrecovery of incriminating articles therefrom".
Thefindings recorded by the enquiry officer, a copy of whichhas been placed before us, indicate that the chargesframed against the appellant were sought to be proved bypolice officers and panch witnesses, who had raided thehouse of the appellant and had effected recovery. Theywere the only witnesses examined by the enquiry officerand the enquiry officer, relying upon their statements, came to the conclusion that the charges were establishedagainst the appellant. The same witnesses were examined inthe criminal case but the Court, on a consideration of theentire evidence, came to the conclusion that no search wasconducted nor was any recovery made from the residence ofthe appellant. The whole case of the prosecution wasthrown out and the appellant was acquitted. In thissituation, therefore, where the appellant is acquitted bya judicial pronouncement with the finding that the "raidand recovery" at the residence of the appellant were notproved, it would be unjust, unfair and rather oppressiveto allow the findings recorded at the ex partedepartmental proceedings to stand.35.
Since the facts and the evidence in both theproceedings, namely, the departmental proceedings and thecriminal case were the same without there being any iotaof difference, the distinction, which is usually drawn asbetween the departmental proceedings and the criminal caseon the basis of approach and burden of proof, would not beapplicable to the instant case. "(b) G.M.Tank Vs. State of Gujarat (2006 (5) SCC 446) :“24. In Corpn. of the City of Nagpur Vs. Ramchandra https://hcservices.ecourts.gov.in/hcservices/ (1981 (2) SCC 714 = 1981 SCC (L & S) 455 = AIR 1984 SC626) the same question arose before this Court. ThisCourt, in para 6, held as under: (SCC p. 718)"6. The other question that remains is if therespondents are acquitted in the criminal case whetheror not the departmental inquiry pending against therespondents would have to continue. This is a matterwhich is to be decided by the department afterconsidering the nature of the findings given by thecriminal court.
Normally where the accused isacquitted honourably and completely exonerated of thecharges it would not be expedient to continue adepartmental inquiry on the very same charges orgrounds or evidence, but the fact remains, however, that merely because the accused is acquitted, thepower of the authority concerned to continue thedepartmental inquiry is not taken away nor is itsdirection [discretion] in any way fettered. "25. The rulings cited by the learned counselappearing for the respondent are: In Krishnakali Tea Estate Vs. Akhil Bharatiya ChahMazdoor Sangh (2004 (8) SCC 200 = 2004 SCC (L & S) 1067)it was argued before this Court on behalf of therespondent Sangh that the Labour Court ought not to havebrushed aside the finding of the criminal court whichaccording to the learned Single Judge "honourably"acquitted the accused workmen of the offence before it. The learned Judges were taken through the judgment of thecriminal court.
The Bench was of the opinion that theacquittal by the criminal court was "honourable" as it wasbased on the fact that the prosecution did not producesufficient material to establish its charge which wasclear from the following observations found in thejudgment of the criminal court: (SCC p. 211, para 25)"Absolutely in the evidence on recordof the prosecution witnesses I have found nothingagainst the accused persons. The prosecution totallyfails to prove the charges under Sections 147, 353,329 IPC."(c) 2008 (4) SCC 1: (Union of India Vs. Naman SinghShekhawat):“19. Initiation of the departmental proceeding mustbe viewed in the background of his total exoneration bythe Customs Authorities and the criminal court.”“22. If the charges levelled against the respondentin the departmental proceeding only related toadministrative lapses on his part, it could have beeninitiated long back. Why was it initiated after a period https://hcservices.ecourts.gov.in/hcservices/ of nine years has not been explained.
On a query made byus, the learned Additional Solicitor General, submittedthat the Department must have been waiting for the outcomeof the criminal case. If that is so, it was expected thatthe evidence would have been adduced in the criminalproceeding to establish that the misuse of the jeep andthe official revolver as also visiting the border area bythe respondent formed part of conspiracy. The identity andthe activity of the private person, who was found in thecompany of the respondent, should have been investigatedby the competent authority, particularly when therespondent was working in the Intelligence Department.”"28. It has been suggested before us that the chargesagainst the respondent in the criminal case and thedepartmental proceeding were different. However, we failto understand what sort of public duty the respondent wasexpected to perform when he was intercepted by the policein a jeep which was driven by Bhoor Singh, a notorioussmuggler who had been detained under the Maintenance of Internal Security Act.
If the conduct of the respondentdid not cause any embarrassment to the Department in theyear 1983, how, after exoneration by the CustomsAuthorities and acquittal by the criminal court, his actsembarrassed the Department, so as to form the basis ofimputation of misconduct, is again beyond anybody'scomprehension. The inquiry officer and consequently thedisciplinary authority misdirected themselves in law asthey posed unto themselves a wrong question. The appellateauthority's findings are noticed in para 13 (supra) hadnot been considered at all. The disciplinary authority, therefore, for all intent and purport, differed with thefindings of the Customs Department as well as the criminalcourt, but no basis therefor was disclosed. No suchevidence was brought on record. No witness was examined toprove the said fact. Even no documentary evidence wasproduced. The entire basis of the said finding is the ipsedixit of the disciplinary authority and the appellateauthority.
It again goes to show that despite the findingsof the Customs Authorities and the criminal court, whatwas uppermost in the mind of the disciplinary authorityand the appellate authority was his alleged involvement inthe smuggling activity.”
29. There cannot be any doubt whatsoever, as hasbeen submitted by the learned Additional SolicitorGeneral, that initiation of departmental proceeding ispermissible even after the judgment of acquittal isrecorded by the criminal court. But the same would notmean that a proceeding would be initiated only because itis lawful to do so. A departmental proceeding could beinitiated if the Department intended to adduce any https://hcservices.ecourts.gov.in/hcservices/ evidence which is in its power and possession to prove thecharges against the delinquent officer. Such a proceedingmust be initiated bona fide. The action of the authorityeven in this behalf must be reasonable and fair.
“38.
In Jasbir Singh Vs. Punjab & Sind Bank (2007 (1)SCC 566 = 2007 (1) SCC (L & S) 401 = 2006 (11) Scale 204)it was held: (SCC p.569, para 9):"9[7]. The learned counsel for the respondentcontended that the decision of this Court has noapplication. He may be right. But, it is notnecessary for us to delve deep into the matter as weare of the opinion that the judgment in civil matterhaving attained finality, the same was binding on therespondent Bank. "“39. In M.V.Bijlani Vs. Union of India (2006 (5) SCC88 = 2006 SCC (L&S) 919) this Court stated the law in thefollowing terms: (SCC p.95, para 25):"25. ... Although the charges in a departmentalproceeding are not required to be proved like acriminal trial i.e. beyond all reasonable doubt, wecannot lose sight of the fact that the enquiry officerperforms a quasi-judicial function, who upon analysingthe documents must arrive at a conclusion that therehad been a preponderance of probability to prove thecharges on the basis of materials on record.
Whiledoing so, he cannot take into consideration anyirrelevant fact. He cannot refuse to consider therelevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of thewitnesses only on the basis of surmises andconjectures. He cannot enquire into the allegationswith which the delinquent officer had not been chargedwith. " (d) W.A.No.1061 of 2009, dated 9.10.2009 (Division Bench of Madras High Court) (The State of Tamil Nadu, rep. by itsSecretary to Government, Industries Department (E1), FortSt.George, Chennai-600 009 and another Vs. T.Ganapathy): "13. It had also been submitted that since thecriminal case registered against the respondent and thedepartmental proceedings are relating to the same set offacts and based on the same evidence, it would not be opento the appellants to initiate separate departmentalproceedings after a long delay. Even though the respondenthad been honourably acquitted in the criminal case, suchproceedings would be hit by the doctrine of double jeopardyand it would be contrary to the principles enshrined in Articles 20 and 21 of the Constitution of India.
Thelearned counsel for the respondent had relied on the https://hcservices.ecourts.gov.in/hcservices/ following decisions in support of his contentions:1) In G.M.Tank V. State of Gujarat (2006(3) CTC494), the Supreme Court had held as follows: "24....... In this case, the departmentalproceedings and the criminal case are based onidentical and similar set of facts and the charge in adepartmental case against the appellant and the chargebefore the Criminal Court are one and the same. It istrue that the nature of charge in the departmentalproceedings and in the criminal case is grave. Thenature of the case launched against the appellant onthe basis of evidence and material collected againsthim during enquiry and investigation and as reflectedin the charge sheet, factors mentioned are one and thesame. In other words, charges, evidence, witnesses andcircumstances are one and the same. In the presentcase, criminal and departmental proceedings havealready noticed or granted on the same set of factsnamely, raid conducted at the appellant's residence, recovery of articles therefrom.
The InvestigatingOfficer, Mr.V.B.Raval and other departmental witnesseswere the only witnesses examined by the EnquiryOfficer who by relying upon their statement came tothe conclusion that the charges were establishedagainst the appellant. The same witnesses wereexamined in the criminal case and the Criminal Courton the examination came to the conclusion that theprosecution has not proved the guilt alleged againstthe appellant beyond any reasonable doubt andacquitted the appellant by his judicial pronouncementwith the finding that the charge has not been proved.25. It is also to be noticed that the judicialpronouncement was made after a regular trial and onhot contest. Under these circumstances, it would beunjust and unfair and rather oppressive to allow thefindings recorded in the departmental proceedings tostand. In our opinion, such facts and evidence in thedepartment, as well as criminal proceedings were thesame without there being any iota of difference, theappellant should succeed.
The distinction which isusually proved between the departmental and criminalproceedings on the basis of the approach and burden ofproof would not be applicable in the instant case. Though finding recorded in the domestic enquiry wasfound to be valid by the Courts below, when there wasan honourable acquittal of the employee during thependency of the proceedings challenging the dismissal, the same requires to be taken note of and the decisionin Paul Anthony's case (supra) will apply......" https://hcservices.ecourts.gov.in/hcservices/ 2) In Union of India V. N.S.Shekhawat (2008(2)L.LN 783) the Supreme Court had held as follows: "There cannot be any doubt that initiation ofdepartmental proceeding is permissible even after thejudgment of acquittal is recorded by the criminalCourt. But the same would not mean that a proceedingwould be initiated only because it is lawful to do so.A departmental proceeding could be initiated if the Department intended to adduce any evidence which is inits power and possession to prove the charges againstthe delinquent officer.
Such a proceeding must beinitiated bona fide. The action of the authority evenin this behalf must be reasonable and fair. It is nota case where a mere benefit of doubt had been given tothe respondent in the criminal proceeding. Thecriminal Court has given a positive finding that theprosecution has not been able to prove that theaccused had misappropriated the goods. His visit tothe border for discharging his duties did nottantamount to misuse of the post or the authority. Noevidence has been presented that he did not have theauthority to go to the border side on official dutiesand even the department had not forbidden him fromgoing to that place. It was held that asmisappropriation of the property has not been proved, the question of any criminal conspiracy did not arise. No evidence had been adduced to bring home the chargeof criminal conspiracy, which is an independentcrime. "3) In The Secretary, Vallalar Gurukulam HigherSecondary School V. District Educational Officer, Cuddalore (2005 (4) CTC 7), a Division Bench of this Court had held as follows: "When a misconduct is committed by an employee, the authorities have the option to take two kinds ofproceedings against him.
Firstly a criminal proceedingif he is alleged to have committed a criminal offence, and in addition they can also take a departmentalproceeding against him by issuing a departmentalcharge memo. Even if the employee is acquitted in thecriminal case, he can yet be found guilty in thedepartmental proceedings. This is because the standardof proof in the two proceedings is different. Incriminal proceedings, `the standard of proof' is proofbeyond reasonable doubt, whereas in departmental https://hcservices.ecourts.gov.in/hcservices/ proceedings, standard of proof is like in a civil casei.e., balance of probabilities. "4) In State of Tamil Nadu V. Jayapal.M. (2005-II-LLJ 1138), a Division Bench of this Court had held asfollows: "The only point on which turned the success orfailure of this petition was whether an acquittal ofthe respondent in criminal case upon a set of factssame as those on which a charge memo served on himwere based would justify or not quashing of the chargememo.
The High Court observed a judgment of acquittalgiving benefit of doubt to the accused could not beequated to such judgment on technical grounds. In thiscase the acquittal was not on technical grounds. Hencethe order of the Administrative Tribunal quashing thecharge memo was upheld as proper. Further, on facts, the High Court found the charge memo had been issuedfourteen long years after the incident and four yearsafter the acquittal. It observed if the respondent hadto face departmental enquiry after the lapse of somany years, considerable prejudice would be caused tohim. "..."16. It is well settled in law that if a person ishonourably acquitted based on the merits of the case, itcannot be put against him to deny the service benefits thatwould have accrued to him in the usual course of theservice. However, if a person had been acquitted by acriminal Court, based on the benefit of doubt going in hisfavour, the same result may not accrue.
17. In an earlier decision in W.A.No.1287 of 2008,(THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI Vs.D.MAHADEVAN), the First Bench of this Court had held thatthe acquittal of a person by a criminal Court, if it isbased on the benefit of doubt being given in his favour, would not entitle him to be considered for being selectedin service. However, if a person has been acquitted, basedon no evidence, it would amount to an honourable acquittaland therefore, he would be entitled to be considered forsuch selection. "(e) W.P.(MD).No.2779 of 2009, dated 24.3.2010 (MaduraiBench of Madras High Court) (Panneerselvam Vs. State of Tamil Nadu and another):"6. It is astonishing to note that when the charge islevelled against the officer that he has failed to maintaindecorum or integrity or acted against the general public, there is absolutely no record which has been relied upon bythe respondents either in the form of complaint from any of https://hcservices.ecourts.gov.in/hcservices/ the public or in the form of any material evidence to showthat the petitioner has acted dishonesty and withoutintegrity.
There is no complaint from any of the officialsworking along with the petitioner to show that thepetitioner has failed to maintain decorum and in theabsence of such material to proceed further against thepetitioner by the respondents under the impugned chargememo in respect of those charges cannot serve any fruitfulpurpose. It shall be taken note of that admittedly thepetitioner has during the pendency of the impugned chargememo attained the age of superannuation. Of-course, he wasnot allowed to retire since the disciplinary proceedings iskept pending against him. As far as the first major chargeas stated above and analysis of the Judgment of thecriminal Court clearly state, that it is on the same set offact, the major charge is only levelled against thepetitioner. In the hierarchy of the Judgment commencingfrom the Judgement in Capt. M.Paul Anthony v. Bharat GoldMines Ltd., reported in (1999) 3 SCC 679 followed by thesubsequent Judgments in Union of India v.
Narender Singhreported in (2004) 1 SCC 121 and the Constitution Bench ofthe Supreme Court Judgment in R.P.Kapur v. Union of Indiareported in AIR 1964 SC 787 and the Corporation of the Cityof Nagpur v. Ramachandra, a three Judges Judgment of the Supreme Court reported in (1981) 2 SCC 714, it has been thecategoric stand of the Hon'ble Apex Court that while it iswell settled law that even in cases of acquittal, thedisciplinary proceedings may follow, but in cases where thecriminal Court honourably acquits the delinquent on thesame set of facts and on the same ground and evidence, itwould not be expedient to continue the departmentalproceedings on the very same charges, grounds and evidence. That was the view expressed by the Hon'ble Apex Court in Corporation of the City of Nagpur v. Ramachandra, reportedin (1981) 2 SCC 714, Paragraph 24 of the said decision isas follows:-"The other question that remains is if therespondents are acquitted in the criminal case whetheror not the departmental inquiry pending against therespondents would have to continue.
This is a matterwhich is to be decided by the department afterconsidering the nature of the findings given by thecriminal court. Normally where the accused isacquitted honourably and completely exonerated of thecharges it would not be expedient to continue adepartmental inquiry on the very same charges orgrounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the powerof the authority concerned to continue the departmentalinquiry is not taken away nor is its direction https://hcservices.ecourts.gov.in/hcservices/ (discretion) in any way fettered".7. The Supreme Court has clarified the differencebetween the honourable acquittal and granting the benefitof doubt in the decision of Krishnakali Tea Estate v. AkhilBharatiya Chah Mazdoor Sangh, reported in (2004) 8 SCC 200,that when the criminal Court based on the fact and evidenceproduced by the prosecution has held that the prosecutionhas not produced sufficient materials to establish thecharge, it should be construed as honourable acquittal.
Asimilar situation where on identical and similar set offacts in the criminal case as well as the charge in thedepartmental case against a delinquent officer, it was heldthat even if the charge in the criminal case is grave innature and after examination of the some witnesses, who arearrayed as in the departmental proceedings, the criminalCourt holding that the charge against the accused was notproved beyond reasonable doubt and acquitted the delinquentofficer after regular trial, it would be unjust and unfairrather abrasive for the department to allow its proceedingsto continue. That was the view expressed by the Hon'bleApex Court in G.M.Tank v. State of Gujarat and othersreported in (2006) 5 SCC 446 and paragraphs 30 and 31 areas follows:-"30. The judgments relied on by the learnedcounsel appearing for the respondents aredistinguishable on facts and on law. In this case, thedepartmental proceedings and the criminal case arebased on identical and similar set of facts and thecharge in a departmental case against the appellantand the charge before the criminal court are one andthe same.
It is true that the nature of charge in thedepartmental proceedings and in the criminal case isgrave. The nature of the case launched against theappellant on the basis of evidence and materialcollected against him during enquiry and investigationand as reflected in the charge-sheet, factorsmentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are oneand the same. In the present case, criminal anddepartmental proceedings have already noticed orgranted on the same set of facts, namely, raidconducted at the appellant's residence, recovery ofarticles therefrom. The Investigating OfficerMr.V.B.Raval and other departmental witnesses were theonly witnesses examined by the enquiry officer who byrelying upon their statement came to the conclusionthat the charges were established against theappellant. The same witnesses were examined in thecriminal case and the criminal court on the https://hcservices.ecourts.gov.in/hcservices/ examination came to the conclusion that theprosecution has not proved the guilt alleged againstthe appellant beyond any reasonable doubt andacquitted the appellant by its judicial pronouncementwith the finding that the charge has not been proved.
It is also to be noticed that the judicialpronouncement was made after a regular trial and onhot contest. Under these circumstances, it would beunjust and unfair and rather oppressive to allow thefindings recorded in the departmental proceedings tostand.31. In our opinion, such facts and evidence inthe departmental as well as criminal proceedings werethe same without there being any iota of difference, the appellant should succeed. The distinction which isusually proved between the departmental and criminalproceedings on the basis of the approach and burden ofproof would not be applicable in the instant case. Though the finding recorded in the domestic enquirywas found to be valid by the courts below, when therewas an honourable acquittal of the employee during thependency of the proceedings challenging the dismissal, the same requires to be taken note of and the decisionin Paul Anthony case1 will apply.
We, therefore, holdthat the appeal filed by the appellant deserves to beallowed. "(f) 2011 (3) LLN 318 (Mad) (Madurai Bench of Madras HighCourt) (S.Natchathram Vs. The Superintendent of Police, Madurai District, Madurai):"27. Of course, the learned Special GovernmentPleader is right in contending that the Department cannotbe restrained from proceeding against the Petitioner bothdepartmentally and in the Criminal Court and that thestandard of proof and the purpose for which both theproceedings are initiated, are different but, in the caseon hand, since the Court of competent jurisdiction, hasalready categorically held that it is not safe to rely onthe First Information Report, departmental action takenagainst the Writ Petitioner solely on the basis ofinvolvement of the Petitioner on the basis of such FirstInformation Report, cannot be allowed to continue, as itwould amount to travesty of justice.28.
Though Courts have consistently held thatquashing or setting aside the charge, at the threshold isgenerally not permissible, there is no hard rule that inevery case, where Disciplinary action is initiated, thecharged official should undergo the ordeal of facing theenquiry and ultimately, if any punishment is imposed, he https://hcservices.ecourts.gov.in/hcservices/ should challenge the same in the manner known to law. Itis well known that the purpose of initiation of thedepartmental action is to award a suitable punishment forthe alleged misconduct. In the case on hand, the allegedmisconduct is involvement of the Petitioner in a Criminalcase in Crime No.50 of 1990, on the file of the learnedJudicial Magistrate No.IV, Madurai. When the FirstInformation Report registered against the Petitioneritself has been found to be unsafe to proceed further andwhen the criminal Court has categorically found that therewas no evidence for demand of dowry, no useful purposewould be served in conducting an enquiry against the Petitioner.
On the other hand, as rightly contended bylearned counsel for the Petitioner, it would beunnecessary harassment for the Petitioner to undergo theordeal. On the facts of this case, this Court is of theconsidered view that mere involvement of the Petitioner inthe First Information Report, which has been found to beunreliable and unsafe, cannot be a subject matter of Departmental proceedings and therefore, the second countof charge also falls to the ground.29. The Charge Memorandum can be quashed inexceptional cases as held in Union of India and anotherVs. Kunisetty Satyanarayanan, 2006 (12) SCC 28 = AIR 2007SC 906, wherein at paragraph No.16, the Hon'ble SupremeCourt has held as follows: "16. No doubt, in some very rare and exceptionalcases, the High Court can quash a charge-sheet or showcause notice if it is found to be wholly withoutjurisdiction or for some other reason if it is whollyillegal.
However, ordinarily the High Court should notinterfere in such a matter. " 7. Per contra, Mr.M.Dig Vijaya Pandian, learned AdditionalGovernment Pleader appearing for the respondent, contended that therewas no delay on the part of the respondent, both in initiation andconclusion of the departmental proceedings, and as the petitionerchallenged the impugned revised charge memo, in this Writ Petitionand as there was an interim order of stay passed by this Court inM.P.No.2 of 2008 in W.P.No.30503 of 2008, by order dated 23.12.2008,the departmental proceedings could not be concluded at once. LearnedAddl.G.P. further contended that issuance of the revised chargememo, dated 17.11.2008 is valid and legal, as it was different fromthe earlier charge memo issued to the petitioner, dated 28.4.2004.Lastly, he contended that it is well settled proposition of law thatthe departmental proceedings are different from the criminal case, and there is no legal impediment to proceed with the samesimultaneously, even though the petitioner had been acquitted by thecriminal Court in respect of some of the charges.
In support of hiscontentions, the learned Addl.G.P. relied on the following decisions: https://hcservices.ecourts.gov.in/hcservices/ "(a) 2007 AIR SCW 1639 = 2007 (14) SCC 49 : Government ofA.P. Vs. Appala Swamy: "11. It may be true that there was some delay on thepart of the appellants to conclude the departmentalproceedings. The Tribunal did not accept the contentionraised on behalf of the respondent that only by reasonthereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required toconsider the question as to whether, in the facts andcircumstances of this case, particularly in view of thenature of the charges levelled against the respondent asalso the explanation offered by the appellants in thisbehalf, it was a case where the entire proceedings shouldhave been quashed. The High Court in its impugned judgmentdid not address itself the said question.
It, as noticedhereinbefore, from the very beginning proceeded on thepremise that the pension was payable to the respondent onhis retirement. The High Court furthermore did not determinethe question as to whether a proceeding could have beeninitiated against the respondent in terms of Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963. If it is held that the secondproceeding was maintainable in terms of the extant rules, ordinarily, the Tribunal or the High Court should not haveinterfered therewith. This aspect of the matter is concludedby the decisions of this Court in State of U.P. Vs. BrahmDatt Sharma (1987 (2) SCC 179 = AIR 1987 SC 943) and Stateof U.P. Vs. Harihar Bhole Nath (2006 (11) SCALE 322 = 2006AIR SCW 5976).12. So far as the question of delay in concluding thedepartmental proceedings as against a delinquent officer isconcerned, in our opinion, no hard-and-fast rule can be laiddown therefor.
Each case must be determined on its ownfacts. The principles upon which a proceeding can bedirected to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condonedthe lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out bythe employee before the inquiry officer.13. This aspect of the matter is now squarely coveredby the decisions of this Court in Secy. to Govt.,Prohibition & Excise Deptt. Vs. L.Srinivasan (1996 (3) SCC157; P.D.Agrawal Vs. State Bank of India (2006 AIR SCW 2504= 2006 (5) SCALE 54); Registrar, Coop. Societies Vs.Sachindra Nath Pandey (1995 (3) SCC 134 = 1995 AIR SCW3028).” https://hcservices.ecourts.gov.in/hcservices/ (b) W.P.(MD).No.6855 of 2005, dated 8.10.2007 (Madurai Benchof Madras High Court) (R.Raju Vs. The Superintendent of Police):"4. The Supreme Court in its decision reported in 1987(2) SCC 179 [State of U.P. v.
Brahm Datt Sharma and another]dealt with the power of the Court in dealing with a chargememo at the show cause stage and the following passage foundin paragraph 9 will make the position clear. Para 9: "The High Court was not justified inquashing the show cause notice. When a show causenotice is issued to a government servant under astatutory provision calling upon him to show cause, ordinarily the government servant must place his casebefore the authority concerned by showing cause and thecourts should be reluctant to interfere with the noticeat that stage unless the notice is shown to have beenissued palpably without any authority of law. Thepurpose of issuing show cause notice is to affordopportunity of hearing to the government servant andonce cause is shown it is open to the Government toconsider the matter in the light of the facts andsubmissions placed by the government servant and onlythereafter a final decision in the matter could betaken.
Interference by the court before that stagewould be premature, the High Court in our opinion oughtnot have interfered with the show cause notice. "8. A circumspection of facts reveals that the petitionerentered into Government service as Sub-Registrar Grade-II on22.8.1986 at the Office of the District Registrar, Coimbatore; thereafter, he was promoted as Grade-I Sub-Registrar with effect from31.3.1997. As on date, the petitioner is working as Sub-Registrar(Administration) in the office of the Deputy Inspector General of Registration, Salem. While discharging duties as Sub-Registrar(Guideline), Erode District, on 15.6.1998, the petitioner committedmisconduct. Hence, he was issued with a charge memo bearingNo.49429/B1/2001, dated 28.4.2004 with the following charge: "While Tr.P.Chinnadurai, Sub Registrar, Guideline, O/othe District Registrar, Erode has demanded bribe money ofRs.3000/- to inspect the property and to assess the value ofland and building of a partition deed which was presented bythe complainant Tr.Muthukumar on 19.10.2001 and receivedRs.1000/- through a private individual Tr.Suresh Babu in thepresence of Tr.Mohan and he was arrested by Vigilance and Anti-corruption Department and has thus failed to maintainabsolute integrity and devotion to duty in contravention of Rule 20(1) of the Tamil Nadu Government Servants Conduct https://hcservices.ecourts.gov.in/hcservices/ Rules, 1973."9.
The petitioner submitted his explanation dated 22.9.2004. TheDeputy Inspector General of Registration, Coimbatore, was appointedas the Enquiry Officer. The petitioner had not allowed to proceedwith the enquiry citing pendency of Criminal Case and he also filedW.P.No.31344 of 2004 before this Court. On verification of therecords of this Court, it is seen that the said W.P.No.31344 of 2004is still pending.10. The respondent issued a revised charge memo bearingNo.49429/B1/2001, dated 17.11.2008 with the following charges: "Charge No.1:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode caused the delay of six monthsfor taking action and to finalize the valuation proposal inrespect of file No.507/2000 dt.26.12.2000 of Sub-RegistrarOffice, Kodumudi and therefore caused delay in registrationof the documents relation to the complainantTr.D.Muthukumar with the aim of extracting money from thecomplainant.
On 19.10.2001 in pursuance of his earlierdemand Tr.P.Chinnadurai instructed his unauthorizedemployee Tr.V.Suresh Babu, a private person to receive thebribe of Rs.1000/- from the complainant Tr.D.Muthukumar andTr.V.Suresh Babu with knowledge received the said bribeamount from the complainant for releasing the document. Charge No.2:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode at the time of trap between 13.30hours and 17.35 hours on 19.10.2001 at his seat at theoffice of the District Registrar, Erode was found withunaccounted money of Rs.1200/- kept in his pocket, forwhich he could not satisfactorily account for. Charge No.3:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode has kept an unaccounted money ofRs.53,000/- at his residence at No.26, Bharathi Park, Street-2, Coimbatore-43 which was detected and seizedduring the house search conducted on 19.11.2001 between4.15 p.m. for which he could not satisfactorily accountfor.
Charge No.4:Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode employed a private individualTr.V.Suresh Babu unauthorisedly to perform official work athis seat and allowed him to make entries in the officerecords. Tr.P.Chinnadurai, Sub Registrar, Guideline, O/o the District Registrar, Erode while discharging his officialduties failed to maintain absolute integrity and devotion https://hcservices.ecourts.gov.in/hcservices/ to duty in contravention of Rule 20(1) of the Tamil NaduGovernment Servants Conduct Rules, 1973."11. Pursuant to the above charges, the petitioner was arrested bythe DVAC department on 19.10.2011 and remanded to judicial custodytill 2.11.2011 and released on bail on 2.11.2011 and a criminal casewas registered against the petitioner in Spl.C.C.No.16 of 2003 on thefile of Chief Judicial Magistrate-cum-Special Court, Erode and thesame ended in acquittal, vide order of Court, dated 26.12.2007.12.
Initially, as the petitioner failed to discharge his officialduties and maintain absolute integrity and devotion to duty incontravention of Rule 20(1) of the Tamil Nadu Government ServantsConduct Rules, 1973, he was issued with the charge memo dated28.4.2004 under Section 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. Challenging the said charge memo dated28.4.2004, the petitioner filed W.P.No.31344 of 2004, and onverification of the records, it is seen that W.P.No.31344 of 2004 isstill pending and only notice was ordered at the time of admission ofW.P.No.31344 of 2004 and there was no stay granted by this Court inthat Writ Petition. 13. In the meantime, the impugned revised charge memo dated17.11.2008 was issued against the petitioner under Rule 17(b) of thesaid Rules, for the imputation of misconduct alleged against thepetitioner in respect of the four charges already extracted above.
Challenging this charge memo dated 17.11.2008, the present WritPetition has been filed and this Court, while admitting this WritPetition on 23.12.2008, granted the interim order of stay, inM.P.No.1 of 2008, observing as follows: "There will be an order of interim stay of the revisedcharge memo in respect of charges 1 and 4 alone. Learned Senior Counsel appearing for the petitionersubmits that in respect of the earlier charge memo, it ismentioned in the affidavit filed in support of the petitionthere is stay, however as such there is no stay in respectof the charge memo and there is a mistake in the affidavit. The present charge memo is also in the similar manner. Theabove statement is recorded. "14. The charge Nos.1 and 4 in the revised charge memo are thesubject matter of criminal case, in Spl.C.C.No.16 of 2003, whichended in acquittal, as stated above. The respondent-Departmentproceeded with the trial in respect of the charge Nos.2 and 3 aloneand the departmental proceedings have been concluded. https://hcservices.ecourts.gov.in/hcservices/
In the additional counter affidavit filed by the respondent, in paragraph 5, it is stated as follows: "5. The petitioner had filed a Writ PetitionNo.30503/2008 against the above said charge memo andobtained stay order in respect of charges 1 and 4 of thecharge memo. Vacate stay petition has been filed by therespondent in this Hon'ble Court to vacate the stay order. Meanwhile, in W.P.No.1277 of 2009, order dated15.9.2009, the above said writ petition filed by thepetitioner, it has been directed as follows: "Para 20: The writ petition stands allowedwith direction to the respondents to include thename of petitioner in the panel for DistrictRegistrar for the year 1999-2000 and confer thebenefit of promotion as District Registrar to thepetitioner on the date of promotion of his junioras per G.O.Ms.No.35, Commercial Taxes (H1)Department, dated 3.4.2003, viz., 30.4.2003, ifthere are no other legal impediments and also grantall benefits thereon and such order shall be passedwithin a period of 16 weeks from the date ofreceipt of a copy of this order. ..."thus favouring the delinquent.
On compliance with the judgment, the petitioner waspromoted as District Registrar as per G.O.(2D).No.113,Commercial Taxes and Registration Department, dated9.8.2010 without prejudice to the disciplinary proceedingsunder Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules, in Inspector General of Registration Charge Memo No.49429/B1/2001, dated 28.4.2004pending against the petitioner. At this juncture, enquiry report from the EnquiryOfficer (Deputy Inspector General of Registration, Coimbatore), has been received in respect of charge Nos.2and 3, stating that the charges were not proved. Since the petitioner is a State Level Officer, theenquiry report was forwarded to the Government with itsoriginal file for further course of action. The application of the petitioner are contrary to eachother. The department reiterates the fact that there is nobar in conducting the departmental disciplinary proceedingssimultaneously during the pendency of the criminal case.
Inthe case on hand, it was the petitioner who had not allowedto proceed with the departmental disciplinary proceedings, citing pendency of criminal case. Hence, the revised chargememo is liable to be upheld. It is again reiterated departmental disciplinaryproceedings are different from the criminal case. The https://hcservices.ecourts.gov.in/hcservices/ allegations of the petitioner are imaginary and unfounded. "
While analysing the above position and the questions raisedby the petitioner, as there was an inordinate delay in initiation andconclusion of the departmental disciplinary proceedings, it is to beseen that the occurrence took place on 22.12.2000 and the criminalcase charge sheet was issued on 2.8.2002, and thereafter, therespondent-Department issued the first charge memo on 28.4.2004 andimmediately, the petitioner moved this Court in W.P.No.31344 of 2004,which is still pending as stated above. Thereafter, the respondentissued the present impugned revised charge memo, dated 17.11.2008with imputation of four charges, which is challenged in this WritPetition (W.P.No.30503 of 2008) and this Court, while admitting this Writ Petition on 23.12.2008, granted interim order of interim stay inrespect of charge Nos.1 and 4 alone, as extracted above and the othercharges in Charge Nos.2 and 3 are tried by the respondentdepartmentally and concluded.
To examine the question as to whether there was any delay onthe part of the respondent-Department in issuing the impugned chargememo, it is crystal clear that for the occurrence which took place on22.12.2000, the departmental disciplinary proceedings have beeninitiated by issuance of the first charge memo, dated 28.4.2004,thus, at this stage, there was a delay of about 3-1/2 years. However, there was no legal impediment for the respondent to proceed further, as there was no stay order of this Court in W.P.No.31344 of 2004, inwhich, only notice was ordered by this Court and that Writ Petitionis still pending. Inspite of the same, the respondent-Departmentmoved in snail's pace and issued the impugned revised charge memoonly on 28.4.2008, at this stage, there was a delay of about fouryears from the date of issuance of first charge memo. Ultimately, inthe present Writ Petition being W.P.No.30503 of 2008, while admittingthe same on 23.12.2008, this Court granted interim order of stay inrespect of charge Nos.1 and 4 alone, and thus, it is conspicuouslyclear that there was no order of stay in respect of charge Nos.2 and3 and the respondent-Department ought to have proceeded with theenquiry/trial of departmental disciplinary proceedings, andconcluded, which was also concluded, as is evident from the reportof the enquiry officer (Deputy Inspector General of Registration, Coimbatore), that the charge Nos.2 and 3 have not been proved, asaverred by the respondent in his counter affidavit, and since thepetitioner is a State level Officer, the enquiry report was forwardedto the Government with its original file for further course ofaction. Thus, it is seen that there is no final conclusion of thedepartmental disciplinary proceedings till date, as on orders haveyet been passed by the Government/appellate authority/disciplinaryauthority. Therefore, as regards charge Nos.2 and 3, there was aninordinate delay in initiation and conclusion of the departmentaldisciplinary proceedings. https://hcservices.ecourts.gov.in/hcservices/
In respect of charge Nos.1 and 4, it is seen that there wasan order of interim stay granted by this Court in M.P.No.2 of 2008(in the present W.P.No.30503 of 2008) on 23.12.2008. The subjectmatter of charge Nos.1 and 4 have been simultaneously proceeded inthe criminal case, culminating in the acquittal of thepetitioner/accused/delinquent, by judgment dated 26.12.2007 in Spl.C.C.No.16 of 2003 on the file of the Chief Judicial Magistrate-cum-Special Court, Erode. Since this Court granted interim order ofstay in respect of charge Nos.1 and 4, the respondent-Department wasnot in a position to proceed and conclude the proceedings.
Furthermore, for the same set of charges, both thedepartmental disciplinary proceedings and criminal proceedings havebeen initiated against the petitioner-delinquent. Though thisattracts double jeopardy and lead to travesty of justice, yet, as perthe authoritative pronouncement of the Apex Court, both can gosimultaneously. The charge Nos.2 and 4, the crux of which is thecharge in the criminal charge sheet, having been ended in acquittal, against which, no appeal is stated to have been preferred, the sameshall not be allowed to stand or proceeded departmentally, as theprosecution has not proved the guilt of thepetitioner/accused/delinquent beyond reasonable doubt by the launchof criminal prosecution. Thus, it is to be concluded that as far asthe charge Nos.1 and 4, the petitioner has been acquitted by thecriminal Court and charge Nos.2 and 3 have not been proved, asevidenced by the report of the enquiry officer. 20. It is well settled legal principle, as has been exhaustivelylaid down by the Supreme Court in the decision reported in 1999 (3)SCC 679 (M.Paul Anthony Vs. Bharat Gold Mines Ltd) that if thecriminal case and the departmental proceedings are based on identicalset of facts, and the findings recorded by the enquiry officerindicate that the charges framed against the delinquent was notproved, and the delinquent (accused) having been acquitted in thecriminal case by Court, by a judicial pronouncement, it would beunjust, unfair and rather oppressive to allow the findings recordedat the departmental proceedings to stand. Since the facts and theevidence in both the departmental and criminal proceedings, are thesame, without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings andthe criminal case, on the basis of approach and burden of proof, would not be applicable in the case on hand. This decision of the Apex Court (1999 (3) SCC 679 (cited supra), had been applied by the Supreme Court in the later decision reported in 2006 (5) SCC 446(G.M.Tank Vs. State of Gujarat). https://hcservices.ecourts.gov.in/hcservices/
21. On the question of power of the authorities to issue therevised charge memo, it is to be seen that the earlier charge memo isdated 28.4.2004 and the present impugned revised charge memo is dated17.11.2008, which according to the petitioner, is one and the same. But the respondent took a consistent stand that it is different fromthe earlier one. The power to issue the revised charge memo is notprecluded by any Rules, but the respondent-authority is competent toissue such a revised charge memo only when there are new facts andcircumstances, and in the absence of the same, it is not proper onthe part of the respondent-authority to issue the revised chargememo. There is no new fact or circumstance revealed from any materialdocument, and nothing has been produced before this Court tosubstantiate the same. The respondent has not stated as to under whatcircumstances or was there any fresh material available before them, warranting issuance of the revised charge memo.
It is admittedposition that the power to issue the revised charge memo is withinthe exclusive domain of the respondent-authority, but it can be doneonly in the manner as contemplated under law, that too, it shouldhave been supported by fresh facts and circumstances, coupled withoral and documentary evidence. Thus, on this score, the revisedcharge memo is not supported by any convincing reasons so as touphold the same by this Court.22. Next, on the question of acquittal of the petitioner/accusedin the criminal case, it is a factor to be taken note of by therespondent-Department, and now it is the stand of the respondent inthe additional counter affidavit that the charge Nos.2 and 3 have notbeen proved, as stated by the enquiry officer in the enquiry report. The petitioner being a State level Officer, the disciplinaryauthority is stated to have forwarded the entire file to the Government for further course of action.
It appears that there is noconclusion of the departmental proceedings, either culminating in theconfirmation of the report of the enquiry officer, thereby, exonerating the petitioner from the charges, or taking any actionagainst the petitioner. The respondent-authority/Government aredragging on the matter under one pretext or the other. It is notshown before this Court as to whether the Government has taken afinal decision on the report of the enquiry officer, who stated thatthe charge Nos.2 and 3 have not been proved. Such being the lethargicapproach of the respondent-authority/Government, though thepetitioner has involved himself in the trap case, resulting in thecriminal case proceedings, which ended in acquittal, and he alsobeing proceeded departmentally, and thus, there has been delayedproceedings, which is vitiated in law, as the respondent/Departmenthas not satisfactorily explained to the Court for with-holding of thefinal result of the departmental proceedings, which gives a clearimpression to this Court that there has been inordinate delay in https://hcservices.ecourts.gov.in/hcservices/ initiation/conclusion of the departmental proceedings, which rendersthe revised charge memo invalid.23.
Operative part
In the decision of the Apex Court reported in 1981 (2) SCC714 = 1981 SCC (L & S) 455 = AIR 1984 SC 626 (Corpn. of the City of Nagpur Vs. Ramchandra), relied on by the Supreme Court in thedecision reported in 2006 (5) SCC 446 (cited supra), the Apex Courtobserved as follows: "6. The other question that remains is if therespondents are acquitted in the criminal case whether ornot the departmental inquiry pending against therespondents would have to continue. This is a matter whichis to be decided by the department after considering thenature of the findings given by the criminal court. Normally where the accused is acquitted honourably andcompletely exonerated of the charges it would not beexpedient to continue a departmental inquiry on the verysame charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, thepower of the authority concerned to continue thedepartmental inquiry is not taken away nor is itsdirection [discretion] in any way fettered.
" 24. It is to be worth mentioning that if the same witnesses ofthe departmental proceedings, were examined in the criminal case andthe criminal Court on the examination, comes to the conclusion thatthe prosecution has not proved the guilt alleged against the accusedbeyond any reasonable doubt and acquitted him by its judicialpronouncement with the finding that the charge has not been proved, which was made after a regular trial and on hot contest, it would beunjust and unfair and rather oppressive to allow the findingsrecorded in the departmental proceedings to stand. 25. Further, such facts and evidence in the departmental as wellas the criminal proceedings being one and the same, without therebeing any iota of difference, the petitioner/delinquent/accusedshould succeed. The distinction which is usually proved between thedepartmental and criminal proceedings on the basis of the approachand burden of proof, would not be applicable in the case on hand.
Though the findings recorded in the domestic enquiry was found to bevalid by the Court, and when there was an honourable acquittal of theemployee during the pendency of the departmental proceedings, thesame requires to be taken note of and the decision is the case of the Apex Court reported in 1999 (3) SCC 679 = 1999 SCC (L & S) 810 (Cap.M.Paul Anthony Vs. Bharat Gold Mines Ltd.) (cited supra).26. The respondent-Department ought to have proceededdepartmentally in respect of charge Nos.2 and 3, when the petitionerhad been acquitted in the criminal case in respect of charge Nos.1and 4. https://hcservices.ecourts.gov.in/hcservices/
In view of the ordained principles laid down by the ApexCourt in the various decisions relied on by the learned counselappearing for both parties, and for the foregoing reasonings and uponconsideration of the entire facts and circumstances of the case, andalso on an analysis of the various factors in the case on hand, theimpugned revised charge memo, dated 17.11.2008 issued by therespondent, in respect of charge Nos.1 and 4, alone does not standto legal acumen, and hence, the same is liable to be set aside.
At the same time, it is the duty of this Court that when thedepartmental proceedings are concluded resulting in non-proving ofcharges 2 and 3 after a domestic enquiry and the enquiry report alongwith the entire file having been sent to Government/appellateauthority, it is now for the Government/appellate authority to take adecision one way or the other and pass appropriate orders, inaccordance with law. Hence, this Court is not interfering with theimpugned revised charge memo, dated 17.11.2008, in respect of chargeNos.2 and 3.
Accordingly, the impugned revised charge memo, dated17.11.2008, in respect of charge Nos.1 and 4, alone, are quashed, andit is left open for the appropriate authority/Government to passorders in respect of non-proven charge Nos.2 and 3 and communicatethe decision to the petitioner-delinquent expeditiously.
For the reasons stated above, the Writ Petition is partlyallowed. No costs. The Miscellaneous petitions are closed. Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.cs https://hcservices.ecourts.gov.in/hcservices/ ToThe Inspector General of Registration, Chennai-28.1 cc To Mr.M.Muthappan, Advocate Sr 54011 cc to Govt. Pleader Sr.5488W.P.No.30503 of 2008 mg[co]gp/16.2
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Normally where the accused is acquitted honourably andcompletely exonerated of the charges it would not beexpedient to continue a departmental inquiry on the verysame charges or grounds or evidence, but the fact remains,however, that merely because the accused is acquitted, thepower of the authority concerned to continue thedepartmental inquiry is not taken away nor is itsdirection [discretion] in
Which statutory provisions did this judgment involve?
Constitution of India — arts. 20, 21, 226; Prevention of Corruption Act, 1988 — s. 7(1)(a); Indian Penal Code, 1860 — ss. 147, 329, 353; Maintenance ofInternal Security Act.
Which court decided this case, and when?
Madras High Court, on 27 Jan 2012. The bench was V DHANAPALANWRIT.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.