V.Annasamy v. The Inspector General of Registration

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.04.2012CORAM:THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.9030 of 2012M.P.Nos.1 & 2 of 2012V.Annasamy ... Petitioner Vs.1.The Inspector General of Registration, Santhome High Road, Chennai 600 028.2.The Deputy Inspector General of Registration cum- Enquiry Officer, Coimbatore Division, Coimbatore.3. The District Registrar(Administration) Tiruppur. ... RespondentsPetition filed under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorari calling for the recordsrelating to the charge Memo No.44300/Aa1/2004 dated 10.04.2008 issuedby the first respondent and consequential proceedings No.1658/A1/2009dated 23.01.2012 issued by the second respondent and quash the same.For Petitioner:Mr. Palani SelvarajFor Respondents: Mr.V.Subbiah Special Government PleaderO R D E RThe prayer in the writ petition is to quash the charge memodated 10.04.2008 and the consequential proceedings issued by thesecond respondent dated 23.01.2012.2.It is the case of the petitioner that the petitionerwas issued with a charge memo under Rule 17(b) of the Tamil NaduCivil Services (Discipline and Appeal) Rules, on the allegation thatthe petitioner has demanded a sum of Rs.3,200/- while functioning asSub-Registrar at Anaimalai, Tiruppur, on 13.08.2004 from oneC.Sukumar, S/o Chinnu, Coimbatore for field inspection on 23.08.2004and he received a sum of Rs.1000/- as a first instalment and therebyviolated Rule 20(1) of the Tamil Nadu Government Servants Conduct https://hcservices.ecourts.gov.in/hcservices/ Rules. The petitioner was arrested and thereafter a criminal casewas registered in Crime No.13 of 2004 by the Vigilance and AntiCorruption, Coimbatore on 23.08.2004. According to the petitioner,in the said criminal case, he was acquitted and after the acquittalof the criminal case, the petitioner submitted a representation todrop the charge memo/departmental action initiated under Rule 17(b)of the Rules. The said request was turned down by the secondrespondent through his proceedings dated 23.0.2012 stating that thepetitioner earlier approached the first respondent seeking deferringof the departmental proceedings till the disposal of criminal caseand in the criminal case, the petitioner was acquitted giving benefitof doubt. Against the said judgment, the Vigilance and AntiCorruption Department has filed an appeal and hence the charge memoframed against the petitioner cannot be dropped.3.Learned counsel for the petitioner submitted that thepetitioner having been acquitted in the criminal case, thedepartmental proceedings is bound to be set aside. The learnedcounsel also submitted that there is delay in initiation andconclusion of departmental proceedings and the charge memo is to bequashed.4. The issues arising for consideration are(a)Whether even after the acquittal in the criminal case, thedepartment can proceed with the charge memo framed under Rule 17(b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and(b)Whether there is any delay on the part of the departmentwarranting quashing of the charge memo.5. The acquittal of the petitioner in the criminal case bythe Trial court in S.C.No.9 of 2005 is on benefit of doubt and not onmerits. In the trial Court judgment in several places it is statedthat the evidence of witnesses are not beyond doubt and thepetitioner was acquitted by giving benefit of doubt. Further the saidacquittal has not become final and admittedly appeal against theacquittal is pending before the appellate court.6.It is a well settled proposition of law that if appealis filed and pending the judgment of the trial court has not reachedits finality, as per the judgment of the Supreme Court in OmprakashVerma v. State of Andhra Pradesh reported in 2010 (6) Supreme 729 andappeal is continuation of original proceedings, as per the judgmentof the Supreme Court in Mohd.Saud v. Dr.(Maj.) Shaikh Mahfoozreported in 2011 (1) MLJ 364 (SC). The petitioner also cannotcontend that merely because he is acquitted in the criminal case, nodisciplinary proceedings be continued. The Supreme Court in thedecision in State Bank of Bikaner & Jaipur v. Nemi Chand Nalwayareported in AIR 2011 SC 1931 in Paragraph 9 considered the said https://hcservices.ecourts.gov.in/hcservices/ issue and held thus,"9........................ The standard ofproof required in criminal proceedings beingdifferent from the standard of proof required indepartmental enquiries, the same charges andevidence may lead to different results in the twoproceedings, that is, finding of guilt indepartmental proceedings and an acquittal bygiving benefit of doubt in the criminalproceedings. ................"I had an occasion to consider the said issue in the decision reportedin (2010) 1 MLJ 1179 (P. Mahimaidoss v. Tamil Nadu State TransportCorporation) and in paragraph 9 the decisions of the HonourableSupreme Court and Division Bench of this Court were relied on, whichreads as follows:"9.Whether acquittal in criminal case has gotany bearing in the departmental proceedings, wasconsidered in the following cases:(a)In (2003) 3 SCC 583 (Popli v. Canara Bank),in paragraphs 16 to 19 it is held thus:"16. It is fairly well settled that theapproach and objective in criminal proceedingsand the disciplinary proceedings are altogetherdistinct and different. In the disciplinaryproceedings the preliminary question is whetherthe employee is guilty of such conduct as wouldmerit action against him, whereas in criminalproceedings the question is whether the offencesregistered against him are established and ifestablished what sentence should be imposed uponhim. The standard of proof, the mode of enquiryand the rules governing the enquiry and trial areconceptually different. (See State of Rajasthanv. B.K. Meena) In case of disciplinary enquirythe technical rules of evidence have noapplication. The doctrine of “proof beyond doubt”has no application. Preponderance ofprobabilities and some material on record arenecessary to arrive at the conclusion whether ornot the delinquent has committed misconduct.17. While exercising jurisdiction underArticle 226 of the Constitution the High Courtdoes not act as an appellate authority. Itsjurisdiction is circumscribed by limits of https://hcservices.ecourts.gov.in/hcservices/ judicial review to correct errors of law orprocedural errors leading to manifest injusticeor violation of principles of natural justice.Judicial review is not akin to adjudication ofthe case on merits as an appellate authority.18. In B.C. Chaturvedi v. Union of India thescope of judicial review was indicated by statingthat review by the court is of decision-makingprocess and where the findings of thedisciplinary authority are based on someevidence, the court or the tribunal cannotreappreciate the evidence and substitute its ownfinding.19. As observed in R.S. Saini v. State ofPunjab in paras 16 and 17 the scope ofinterference is rather limited and has to beexercised within the circumscribed limits."(b)In (2005) 7 SCC 764 (Ajit Kumar Nag v. G.M.(PJ), Indian Oil Corporation Ltd.) in paragraph 11,the Supreme Court held as follows:"11. As far as acquittal of the appellant bya criminal court is concerned, in our opinion,the said order does not preclude the Corporationfrom taking an action if it is otherwisepermissible. In our judgment, the law is fairlywell settled. Acquittal by a criminal court wouldnot debar an employer from exercising power inaccordance with the Rules and Regulations inforce. The two proceedings, criminal anddepartmental, are entirely different. Theyoperate in different fields and have differentobjectives. Whereas the object of criminal trialis to inflict appropriate punishment on theoffender, the purpose of enquiry proceedings isto deal with the delinquent departmentally and toimpose penalty in accordance with the servicerules. In a criminal trial, incriminatingstatement made by the accused in certaincircumstances or before certain officers istotally inadmissible in evidence. Such strictrules of evidence and procedure would not applyto departmental proceedings. The degree of proofwhich is necessary to order a conviction isdifferent from the degree of proof necessary torecord the commission of delinquency. The rulerelating to appreciation of evidence in the twoproceedings is also not similar. In criminal law, https://hcservices.ecourts.gov.in/hcservices/ burden of proof is on the prosecution and unlessthe prosecution is able to prove the guilt of theaccused “beyond reasonable doubt”, he cannot beconvicted by a court of law. In a departmentalenquiry, on the other hand, penalty can beimposed on the delinquent officer on a findingrecorded on the basis of “preponderance ofprobability”. Acquittal of the appellant by aJudicial Magistrate, therefore, does not ipsofacto absolve him from the liability under thedisciplinary jurisdiction of the Corporation. Weare, therefore, unable to uphold the contentionof the appellant that since he was acquitted by acriminal court, the impugned order dismissing himfrom service deserves to be quashed and setaside."(c)The Division Bench of this Court in thedecision reported in 2005 (1) CTC 625 (The Managementof Thiruvalluvar Transport Corporation v.S.Anthonysamy) in paragraphs 8 to 13 held as follows:"8.It is well settled that on the samecharges when there is a criminal proceeding aswell as a domestic enquiry, merely because theworkman is found innocent in the criminal case,it does not mean that he cannot be found guiltyin the departmental/domestic enquiry videThenmozhi v. The Chairman & Managing Director,Neyveli Lignite Corporation in W.A.Nos.202 and203 of 2005 dated 8.2.2005.9.In the aforesaid Division Benchdecision reliance had been placed on the SupremeCourt decisions in Allahabad District Co-Operative Bank Ltd., v. Vidhya Varidh Mishra,2004 (6) SCC 482 and Secretary, Ministry of HomeAffairs and Another v. Tahir Ali Khan Tyagi, JT2002 (Supp.1) SC 520.10.In paragraph 12 of the decision inAllahabad District Co-Op. Bank Ltd. v. VidhyaVaridh Mishra (supra) the Supreme Courtobserved:-"Mr.Rao submitted that the respondent had beenexonerated by the criminal Court. He submittedthat the termination was only on the basis of hisconviction. He submitted that as his convictionis set aside, the Courts below were right in https://hcservices.ecourts.gov.in/hcservices/ reinstating the respondent. We are unable toaccede to this submission. The termination waspursuant to a disciplinary inquiry. It issettled law that in a disciplinary inquiry aconclusion different from that arrived at by acriminal Court, may be arrived at. The strictburden of proof required to establish guilt in acriminal Court is not required in disciplinaryproceeding. The respondent has not claimed thatthe disciplinary proceedings were not conductedfairly. As the termination was based on findingsof the Disciplinary Committee, the fact that theappellate Court exonerated the respondent was noconsequence."11.Similarly, in Secretary, Ministry ofHomes Affairs and Another v. Tahir Ali Khan Tyagi(supra) the Supreme Court observed (videparagraph -6):"Departmental proceeding and criminal proceedingcan run simultaneously and departmentalproceeding can also be initiated even afteracquittal in a criminal proceeding particularlywhen the standard of proof in a criminalproceeding is completely different from thestandard of proof that is required to prove thedelinquency of a government servant in adepartmental proceeding, the former being one ofproof beyond reasonable doubt, whereas the latterbeing one of preponderance of probability."12.In view of the above, we are clearly ofthe opinion that the Labour Court proceeded on awrong legal basis and wrongly orderedreinstatement of the workman concerned afterfinding that he was guilty of negligence.13....................................."7.Further the Supreme Court has cautioned the High Courts fromquashing the charge memo/show cause notice in the case of Union ofIndia v. Kunisetty Satyanarayana reported in AIR 2007 SC 906. In thesaid case instead of replying the charge memo, the employeechallenged the same. The Supreme Court in Paragraph 11 to 15 heldthus:"11.Instead of replying to the aforesaidCharge Memo, the respondent filed an OA before theCentral Administrative Tribunal, Hyderabad whichwas disposed of vide order dated 15.3.2004 withthe direction to the applicant to submit his reply https://hcservices.ecourts.gov.in/hcservices/ to the Charge Memo dated 23.12.2003 and onsubmission of the said reply the DisciplinaryAuthority should consider the same. Instead offiling any reply the respondent filed a WritPetition in the High Court which has been allowedand hence this appeal.12.In our opinion, the High Court was notjustified in allowing the Writ Petition.13.It is well settled by a series ofdecisions of this Court that that ordinarily nowrit lies against a charge sheet or show-causenotice vide Executive Engineer, Bihar StateHousing Board vs. Ramdesh Kumar Singh and othersJT1995 (8) SC 331, Special Director and anothervs. Mohd.Ghulam Ghouse and another AIR 2004 SC1467, Ulagappa and others vs. DivisionalCommissioner, Mysore and others 2001 (10) SCC 639,State of U.P. vs. Brahm Datt Sharma and anotherAIR 1987 SC 943 etc.14.The reason why ordinarily a writpetition should not be entertained against a mereshow-cause notice or charge-sheet is that at thatstage the writ petition may be held to bepremature. A mere charge-sheet or show-causenotice does not give rise to any cause of action,because it does not amount to an adverse orderwhich affects the rights of any party unless thesame has been issued by a person having nojurisdiction to do so. It is quite possible thatafter considering the reply to the show-causenotice or after holding an enquiry the authorityconcerned may drop the proceedings and/or holdthat the charges are not established. It is wellsettled that a writ lies when some right of anyparty is infringed. A mere show-cause notice orcharge-sheet does not infringe the right of anyone. It is only when a final order imposing somepunishment or otherwise adversely affecting aparty is passed, that the said party can be saidto have any grievance.15.Writ jurisdiction is discretionaryjurisdiction and hence such discretion underArticle 226 should not ordinarily be exercised byquashing a show-cause notice or charge sheet." https://hcservices.ecourts.gov.in/hcservices/

8. The second contention is that there is delay in issuingthe charge memo and completion of proceedings. Hence the charge memois to be quashed.9.The allegation of demand of illegal gratification wasmade on 13.08.2004. Vigilance and Anti Corruption Departmentarrested the petitioner based on the registration of criminalcomplaint in Cr.No.13 of 2004. Investigation of the criminalcomplaint was made and charge sheet was filed in the criminal case inthe year 2005 and the case was pending as S.C.No.9 of 2005 on thefile of Chief Judicial Magistrate, Coimbatore. During pendency ofthe criminal case, the impugned charge memo was issued on 10.04.2008.The petitioner submitted his explanation on 23.06.2008. Theexplanation having been found not satisfactory, Enquiry Officer wasappointed on 29.01.2009 by the first respondent. 10. The petitioner instead of participating in the enquiry,submitted a representation to defer the departmental proceedings tillthe disposal of the criminal case. The department therefore waitedtill the trial was over in the criminal case. The criminal case inS.C.No.9 of 2005 was disposed of on 15.10.2010. Again on 22.10.2010,the petitioner submitted a representation to drop the charge memo.Thus, the delay in completing the departmental proceedings is fullyexplained. Similar issue was considered in the case ofDr.K.Venkatraman v. State of Tamil Nadu, reported in 2010 (2) CTC 741placing reliance on the following decisions: (a) The Honourable Supreme Court in the decision reported in(1995) 3 SCC 134 : 1995-I LLJ 1069 (Deputy Registrar, Co-OperativeSocieties, Faizabad v. Sachindran Nath Panday and others) inparagraph 7 it is held as follows:"7. On a perusal of charges, we find thatthe charges are very serious. We are, therefore,not inclined to close the matter only on theground that about 16 years have elapsed since thedate of commencement of disciplinary proceedings,more particularly when the appellant alone cannotbe held responsible for this delay. ........"(b)In (1996) 3 SCC 157 : (1996) 2 MLJ 54 : 1996-II LLJ 245(Secretry to Government, Prohibition and Excise Department v.L.Srinivasan) the Supreme Court held that charges cannot be quashedonly on the ground of delay.(c)In 2007 AIR SCW 1639 (Government of A.P. And Others v.V.Appala Swamy) the Supreme Court considered similar issue and heldas follows:"10.So far as the question of delay inconcluding the departmental proceedings as against https://hcservices.ecourts.gov.in/hcservices/ a delinquent officer is concerned, in our opinion,no hard and fast rule can be laid down therefor.Each case must be determined on its own facts.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 employercondoned the lapses on the part of the employee.(2) Where the delay cause prejudice to theemployee.Such a case of prejudice, however, is to be madeout by the employee before the Inquiry Officer.11............................12.Learned counsel appearing on behalf ofthe respondent, however, placed strong reliance ona decision of this Court in M.V.Bijlani v. Unionof India and Others (2006) 5 SCC 88 : 2006-II LLJ800. That case was decided on its peculiar facts.In that case,even the basic material on which adepartmental proceedings could be initiated wasabsent. The departmental proceedings wasinitiated after 6 years and continued for periodof 7 years. In that fact situation, it was heldthat the appellant therein was prejudiced.13.M.V.Bijlani v. Union of India and Others(supra), therefore, is not an authority and, infact, as would appear from the decision inP.D.Agarwal (supra), for the proposition that onlyon the ground of delay the entire proceedings canbe quashed without considering the other relevantfactors therefor."(Emphasis Supplied)Applying the above said decisions to the facts of this case, the twoissues are decided against the petitioner.11.In fine, the writ petition is dismissed. No costs.Connected miscellaneous petitions are also dismissed. Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.VJY/vr https://hcservices.ecourts.gov.in/hcservices/ To1.The Inspector General of Registration, Santhome High Road, Chennai 600 028.2. The Deputy Inspector General of Registration cum- Enquiry Officer, Coimbatore Division, Coimbatore.3. The District Registrar(Administration) Tiruppur.1 cc to Mr.Palaniselvaraj, Advocate, SR No.230231 cc to Government Pleader, Sr.No.23353W.P.NO.9030 OF 2012ANDM.P.NOs.1 & 2 OF 2012TAM {CO}TP/16.4.2012.