The Deputy Inspector General of Police Coimbatore Range Coimbatore v. P.Shanmugasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 14.08.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.A. NO. 343 OF 2008ANDM.P. NO. 1 OF 20081. The Deputy Inspector General of Police Coimbatore Range Coimbatore – 18.2. The Superintendent of Police Erode District, Erode... Appellants- Vs -P.Shanmugasundaram.. RespondentAppeal filed under Clause 15 of the Letters Patent, against theorder dated 10th July, 2007 passed by this Court in W.P. No.22765 of2007.WP.No.22765/07 : Petition presented to this Court, under Article 226 ofthe Constitution of India, to issue a Writ of Mandamus forbearing therespondents from conducting disciplinary proceedings pursuant to thechange Memo issued by the 1st Respondent in C.No.J1/PR.SI.Erode/2007dated 25.05.2007.For Appellants: Mr. M.Dhandapani, Spl. G.P.For Respondent: Mr. S.KamadevanJUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BY S.J.MUKHOPADHAYA, J.)The respondent, Sub-Inspector of Police, preferred writ petitionfor stay of departmental proceeding pursuant to charge memo dated 25thMay, 2007, issued by the Deputy Inspector General of Police, Coimbatore.Grievance was made that for the same very set of facts criminalproceedings were initiated against the respondent and pending before thecriminal court of competent jurisdiction. Learned single Judge, giving https://hcservices.ecourts.gov.in/hcservices/ reference to a decision of this Court in Indian Overseas Bank – Vs –P.Ganesan (2006 (1) CTC 689), allowed the writ petition by impugnedorder dated 10th July, 2007, giving rise to the present appeal preferredby the disciplinary authority.2. Learned counsel appearing for the State submitted that thejudgment in P.Ganesan (supra) on which learned single Judge relied hasalready been reversed by the Supreme Court in Indian Overseas Bank - Vs– P.Ganesan (2008 (1) SCC 650).The stand taken by the learned counsel for the respondent is thateven if the said judgment has been reversed, in view of catena ofdecisions of Supreme Court for the same set of facts and law andevidence, both the criminal case and departmental proceeding havinglodged/initiated, the departmental proceeding should await the decisionin the criminal case.3. We have heard the learned counsel for the parties and noticedtheir rival contentions.4. The question as to whether a departmental proceeding should awaitthe decision of a criminal court for taking disciplinary action againstan employee, fell for consideration before Supreme Court from time totime. In Delhi Cloth & General Mills Ltd. - Vs – Kushal Bhan (AIR 1960SC 806), the Supreme Court, while held that employer should not wait forthe decision of the criminal court before taking any disciplinary actionobserved as hereunder :-"3. .... We may, however, add that if the case is of agrave nature or involves questions of fact or law, whichare not simple, it would be advisable for the employerto await the decision of the trial court, so that thedefence of the employee in the criminal case may not beprejudiced."Similar was the observation of Supreme Court in the case of State ofRajasthan – Vs - B.K.Meena (1996 (6) SCC 417). The relevantobservation made by Supreme Court is quoted hereunder :-"14. ..... The staying of disciplinary proceedings,it is emphasised, is a matter to be determined havingregard to the facts and circumstances of a given caseand that no hard-and-fast rules can be enunciated inthat behalf. The only ground suggested in the abovedecisions as constituting 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 complicated https://hcservices.ecourts.gov.in/hcservices/ questions of law and fact. Moreover, 'advisability','desirability' or 'propriety', as the case may be, hasto be determined in each case taking into considerationall the facts and circumstances of the case."Detailed discussion was made and Supreme Court summarised itsfinding at para-22 in the case of Capt. M.Paul Anthony – Vs – BharatGold Mines Ltd. (1999 (3) SCC 679), as under :-"22. (i) Departmental proceedings and proceedings in acriminal case can proceed simultaneously as there is nobar in their being conducted simultaneously, thoughseparately.(ii) If the departmental proceedings and the criminalcase are based on identical and similar set of facts andthe charge in the criminal case against the delinquentemployee is of a grave nature which involves complicatedquestions of law and fact, it would be desirable to staythe departmental proceedings till the conclusion of thecriminal case.(iii) Whether the nature of a charge in a criminal caseis grave and whether complicated questions of fact andlaw are involved in that case, will depend upon thenature of offence, the nature of the case launchedagainst the employee on the basis of evidence andmaterial collected against him during investigation oras reflected in the charge-sheet.(iv) The factors mentioned at (ii) and (iii) abovecannot be considered in isolation to stay thedepartmental proceedings but due regard has to be givento the fact that the departmental proceedings cannot beunduly delayed.(v) If the criminal case does not proceed or itsdisposal is being unduly delayed, the departmentalproceedings, even if they were stayed on account of thependency of the criminal case, can be resumed andproceeded with so as to conclude them at an early date,so that if the employee is found not guilty his honourmay be vindicated and in case he is found guilty, theadministration may get rid of him at the earliest."In one of the case of Hindustan Petroleum Corporation Ltd. - Vs –Sarvesh Berry (2005 (10) SCC 471) before Supreme Court, a stand wastaken by the employer that the employee cannot be permitted, on the onehand, to prolong the criminal case and at the same time contend that thedepartmental proceedings should be stayed on the ground of pendency ofcriminal case. In the said case, the Supreme Court allowed thedepartmental proceedings to continue despite the fact that thedelinquent officer therein had been charged for commission of offenceu/s 13 (1) (e) r/w Section 13 (2) of the Prevention of Corruption Act,1988. https://hcservices.ecourts.gov.in/hcservices/

5. All the aforesaid judgments have been noticed by Supreme Court inIndian Overseas Bank – Vs – P.Ganesan (2008 (1) SCC 650), wherein theSupreme Court held that there in no rule of automatic stay ofdepartmental proceeding during the pendency of criminal proceeding. TheCourt, before exercising its jurisdiction, should take intoconsideration whether the charges and evidence in both the proceedingswere common and whether any complicated question of law involved. Inthe said case, the departmental proceedings was not stayed by theSupreme Court.In another case of NOIDA Entrepreneurs Association – Vs NOIDA (2007(3) CTC 211), the Supreme Court, having noticed the conceptualdifference between departmental proceeding and criminal proceeding, madethe following observation :-"16. The purpose of Departmental Enquiry and ofprosecution is two different and distinct aspects. TheCriminal prosecution is launched for an offence forviolation of a duty the offender owes to the society, orfor breach of which law has provided that the offendershall make satisfaction to the public. So crime is anact of commission of violation of law or of omission ofpublic duty. The Departmental enquiry is to maintaindiscipline in the service and efficiency of publicservice. It would, therefore, be expedient that theDisciplinary proceedings are conducted and completed asexpeditiously as possible. It is not, therefore,desirable to lay down any guidelines as inflexible rulesin which the Departmental proceedings may or may not bestayed pending trial in criminal case against thedelinquent officer. Each case requires to be consideredin the backdrop of its own facts and circumstances.There would be no bar to proceed simultaneously withdepartmental enquiry and trial of a criminal case unlessthe charge in the criminal trial is of grave natureinvolving complicated questions of fact and law.Offence generally implies infringement of public duty,as distinguished from mere private rights punishableunder Criminal law. When trial for criminal offence isconducted it should be in accordance with proof of theoffence as per the evidence defined under the provisionsof the Indian Evidence Act, 1872 (in short the 'EvidenceAt'). Converse is the case of Departmental enquiry.The enquiry in a Departmental proceedings relates toconduct or breach of duty of the delinquent officer topunish him for his misconduct defined under the relevantstatutory rules or law. That the strict standard ofproof or applicability of the Evidence Act standsexcluded is a settled legal position. Under thesecircumstances, what is required to be seen is whether https://hcservices.ecourts.gov.in/hcservices/ the Department enquiry would seriously prejudice thedelinquent in his defence at the trial in a criminalcase. It is always a question of fact to be consideredin each case depending on its own facts andcircumstances."In the said case also, Supreme Court noticed the case of B.K.Meena,Capt. M.Paul Anthony and Hindustan Petroleum Corporation Ltd. (supra).6. In the present case, the criminal prosecution has been launchedagainst the respondent for the offence u/s 498-A, 506 (2) IPC andSection 4 of Dowry Prohibition Act in C.C. No.194/07. Therein, thefollowing charges has been framed :-"The first accused belongs to Bhavanisagar. He ishaving intimacy with the 2nd accused. The 3rd and 4thaccused are the parents of the first accused. The 5thaccused is the sister of the first accused. The firstaccused with the consent of accused 3 to 5 got marriagewith 1st witness on 9.9.2002. At the time of marriagethey got 100 sovereigns of gold and Rs.2 lakhs towardsmarriage expenses and another 3 lakhs by cash were givenas dowry. Apart from this, the accused 3 to 5 insistedto give a car. Thereafter, during the Deepavali theydemanded Rs.50,000/= and the same was paid by thecomplainant. Further, they threatened the complainant,unless she brings another Rs.5 lakhs and a car she willnot be allowed to live further second marriage will beperformed with the second accused. Thereafter, fromFeb-2003 onwards complainant lived with the firstaccused at Bhavanisagar as husband and wife, at the timethey demanded the Rs.5 lakhs and the car otherwise thefirst accused joining with 2nd accused will kill her. Incontinuation of the same on 27.1.2007 at about 6.00p.m., the firt accused went to the lands of thecomplainant and insisted to get Rs.5 lakhs and the carfor living together otherwise he has threatened to signin the divorce case filed by him and if she fail to doso he will kill her. Hence, the accused 1 to 5 arepunishable u/s 498-A IPC and Section 4 of the DowryProhibition Act. Further, the accused 1 and 2threatened to kill her. Hence they are punishable u/s506 (2) IPC."7. So far as the statement of allegations, namely, imputation ofmisconduct or misbehaviour in support of charge framed against therespondent in the departmental proceeding is concerned, from the saidcharge sheet issued, it appears that charge No.1 and charge No.4 aresimilar to the criminal proceedings pending against the respondent. Thefollowing charges has been levelled :- https://hcservices.ecourts.gov.in/hcservices/ "1) While the charged Officer was working as SI ofPolice at Kundadam P.S., his marriage proposal wasmaterialized. Tr.Balasubramaniam of Senkalipalayam wasmarriage broker and Tr.R.Subramaniam of Vavipalayam wasthe mediator for the marriage proposal. The chargedofficer P.Shanmuga Sundaram, his father Perumal Gounder,mother Dhanalakshmi and younger sister Sujatha demanded100 sov. of gold jewels, case Rs.2,00,000/= for marriageexpenditure and Rs.3,00,000/= in cash as dowry.Accordingly, Tr.V.Lakshmanaswamy Gounder, father ofSasikala gave the demanded dowry and the marriage tookplace at RPS Alamelu Thirumana Mandapam, Palladam Road,Tiruppur on 09.09.2002. After the marriage, the chargedOfficer, Tr.P.Shanmugasundaram stayed at Kundadam withhis wife for about 3 months, obtained a willingnesstransfer to CIU Salem and left for Salem leaving hiswife Sasikala with his parents at Bhavanisagar. Laterhe avoided to visit Bhavanisagar and also to contact hiswife over phone. When his wife Sasikala questionedabout the act of the charged officer with the familymembers, they informed that only after receiving a carand cash of Rs.5,00,000/= she would live with him aswife & husband. Otherwise they would marry WSI Rasathias second wife to the charged officer. Further theyhave received Rs.50,000/= as dowry for DEEPAVALI. Eventhen they continued to harass her demanding dowry.While Rasathi was working as WSI at AWPS Avinashi shecame to Bhavanisagar, stayed with the charged officer onmany occasions in the presence of Sasikala and alsoharassed her demanding dowry already mentioned. On oneoccasion WSI Rasathi assaulted Sasikala pushed her outof the house and accompanied the charged officer toAvinashi. Sujatha, the younger sister of the chargedOfficer have also threatened Sasikala demanding dowry.Finally, Sasikala was threatened and sent to her parentshouse by the charged officer, his family members and WSIRasathi. Wit. D.Sundaramoorthy, President ofVavipalayam, held a panchayat to effect a compromise,but the charged officer utterly told him that he had noidea of staying with his wife and filed a divorce suitin the court. By thus he denied to live with his wifeTmt.Sasikala because of non receipt of more dowry and inthe intention of divorcing his wife which is against therights and expectations of a wife from her husband. On23.01.2007, Sasikala, wife of the charged officer hassent a petition to the CM Cell for taking necessaryaction against the charged officer and his familymembers. On 27.01.2007 at 18.00 hrs., the charged https://hcservices.ecourts.gov.in/hcservices/ officer, visited Vavipalayam, threatened his wifeSasikala with dire consequences and asked her to put hersignature for divorce and witnesses Nataraj ofVavipalayam and K.Duraikannan of Palanigoundenpalayamhave witnessed the occurrence. Thus charged officer hasviolated rule 4 (5) of Tamil Nadu Subordinate PoliceOfficer Conduct Rules, 1964, by getting dowry.********4) On 20.02.2007 at 11.00 hrs., Tm.Sasikala, wife ofthe charged officer appeared at AWPS, Sathyamangalam,lodged a written complaint about the dowry harassment,illegal contact between the charged officer and WSIRasathi. The report was registered in AWPS Cr.No.03/2007 u/s 498 (A), 506 (ii) IPC r/w 4 of D.P. Actagainst 1) the charged officer, 2) WSI Rasathi, 3)Perumal Gounder (father of the delinquent), 4)Dhanalakshmi (mother of the charged officer, 5) Sujatha(younger sister of the charged officer). The Dy. Inspr.Genl. of Police, Coimbatore Range, Coimbatore has placedthe charged officer under suspension as per R.O.No.91/2007 in C.No.D1/1353/2007 dt. 22.02.2007. Theabove order was served by pasting the same on Door ofthe charged officer's house (D. No.47, O.M. Quarters,Bhavanisagar) in presence of Tr.Mahadevan, VAO,Bhavanisagar and Tr.J.Balasubramaniam, VillageAssistant, Bhavanisagar on 24.02.2007 as the chargedofficer was absconding. Thus, the charged officer hasbrought a bad name to the police department and set abad example being an young Sub-Inspector before otherpolice personnel of Police Disciplinary Force. Theabove facts will prove the reprehensible conduct of thecharged officer."On the other hand, charge Nos. 2 and 3, which relates to violationof Rule 19 (2) of the Tamil Nadu Government Servants Conduct Rules, 1973and Rule 9 of the Tamil Nadu Subordinate Police Officers Conduct Rules,1964, has no direct bearing on the criminal case, as evident from thecharges and quoted hereunder:-"2) The charged officer SI, Tr.P.Shanmugasundaram hadillegal contact with WSI Rasathi. While she was workingat AWPS Avinashi, the charged officer has visitedAvinashi on many occasions and stayed with her. Theyhave behaved as husband and wife. Witness Tmt.Jayanthi,WSI Pothanus AWPS has served as WHC under WSI Rasathi atAWPS Avinashi. She states that WSI Rasathi and thecharged officer SI Tr.Shanmugasundaram were livingtogether as husband and wife. WSI Rasathi went toBhavanisagar and stayed with the charged officer SITr.P.Shanmugasundaram on several occasions.Wit.Sasikala, wife of Gunasekaran, 46 – O.M. Quarters, https://hcservices.ecourts.gov.in/hcservices/ Bhavanisagar, a neighbour to the house of the chargedofficer is a witness and she says that WSI Rasathi hasvisited the house of the charged officer on manyoccasions and stayed with him. By thus he violated Rule19 (2) of the Tamil Nadu Government Servants ConductRules, 1973.3) The charged Officer SI Tr.Shanmugasundaram hasviolated Rule 9 of Tamil Nadu Subordinate PoliceOfficers Conduct Rules, 1964, in not submitting thereturns of his assets, liabilities including theproperties received as dowry."8. In the present case, from charge Nos. 1 and 4, it will be evidentthat the departmental proceedings and criminal case are based onidentical and similar set of facts. The charges in the criminal caseagainst the delinquent employee is of a grave nature, which alsoinvolves complicated question of fact. In such a situation, we are ofthe view that it would be desirable to stay the departmental proceedingin regard to charge Nos. 1 and 4 till the conclusion of the criminalcase.Charge Nos. 2 and 3 of the departmental proceeding being not basedon identical or similar set of facts and for that as the delinquentemployee (respondent) is not required to place any evidence of material,which he may use in the criminal case, the departmental proceeding inregard to those two charges, viz., charge Nos. 2 and 3, can proceedsimultaneously as there is no bar in their being conductedsimultaneously.9. In view of our findings, as recorded above, while we set asidethe impugned order dated 10th July, 2007 passed by learned single Judge,direct the appellant not to proceed with the departmental proceeding inregard to charge Nos. 1 and 4 till the conclusion of the criminal case.The respondent is directed to co-operate in the departmental proceedingso far as it relates to charge Nos. 2 and 3 and he should take part inthe day-to-day proceeding. If the respondent do not co-operate in thedepartmental proceeding, it will be open to the enquiry officer anddisciplinary authority to proceed ex-parte in accordance with law. Thewrit appeal stands disposed of with the aforesaid observations anddirections. Consequently, connected miscellaneous petition is closed.But there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ GLNTo1. The Deputy Inspector General of Police Coimbatore Range Coimbatore – 18.2. The Superintendent of Police Erode District, Erode.1 cc To Mr.S.Kamadevan, Advocate, SR.48808.1 cc To The Government Pleader, SR.45626. W.A. NO. 343 OF 2008NM(CO)RVL 27.08.2008