B. Ramesh Babu HC 2378(Under suspension)Tamil Nadu Special Police III Btln.VeeraopuramChennai 53 v. The CommandantTamil Nadu Special Police III Btln.Veerapuram, Chennai 53

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :05.07.2007 C O R A M :THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.A.No. 862 of 2007and M.P.No.1 of 2007B. Ramesh Babu HC 2378(Under suspension)Tamil Nadu Special Police III Btln. VeeraopuramChennai 53. ... Appellant -vs-The CommandantTamil Nadu Special Police III Btln. Veerapuram, Chennai 53. ... RespondentWrit Appeal filed under Clause 15 of Letters Patent againstthe order of the learned single Judge dated 26.03.2007 made inW.P.No.25205 of 2006 The Writ Petition presented to this Courtunder Article 226 of Constitution of India to issue a Writ ofceertiorari Mandamus to calling for the records pertaining to theshow cause Notice NOC.NO.242/G3/2006 dated 18.7.2006 inNa.Ka.No.AA4/tha/Pa/17/2005 passed by the respondent herein andthe charge in the Pa.No.17/2005 dated 1.9.2005 issued by therespondent herein and quash the same. For appellant :: Mr. R. SampathkumarFor respondent .. Mr. Raja Kalifulla Government Pleader JUDGMENT ( DELIVERED BY P.JYOTHIMANI,J.)This writ appeal is directed against the order of thelearned single Judge dated 26.03.2007 passed in W.P.No.25205 of2006, by which the learned Judge while dismissing the writpetition filed by the appellant, has held that the impugned showcause notice issued by the respondent dated 17.07.2005 enclosingthe enquiry report, directing the appellant to give hisexplanation cannot be interfered regarding the merits anddemerits of the findings of the Enquiry Officer. https://hcservices.ecourts.gov.in/hcservices/

It is seen on the facts of the case that as against theappellant while working as Head Constable TSP III Battalion byplacing him under suspension, a charge memo was issued on19.08.2005, which is relating to the leakage of the questionpapers in respect of the examinations conducted for Grade-IIConstable Selection (Men and Women) for the year 2003-2004 andalso receiving illegally an amount of Rs.1,30,000/- for thesame. The charges framed against the appellant are as follows: "ChargeCharge 1: You the Havildar, 2378 Rameshbabuhas committed a condemnable offence ofreceiving illegally the general knowledge andpsychology question paper the examinationGr.-II constable selection (Men and Women)for the year 2003-04 conducted by the TamilNadu Uniformed Services Recruitment Board andtaking the same before the examinationconducted on 27.03.2005.Charge 2: Committed a condemnable offenceillegally receiving the question paper ofgeneral knowledge with answers duringexamination for Gr.-II constable selection(Men and Women) for the year 2003-2004conducted by Tamil Nadu Uniformed ServicesRecruitment Board on 01.06.2005 and leakingthe same before the examination. Charge 3: Committed a condemnable act ofreceiving question papers illegally for theexamination for selection of Gr.II Constableheld on 27.03.2005 and 01.06.2005 conductedby the Tamil Nadu Uniformed ServicesRecruitment Board and receiving illegally anamount of Rs.1,30,000/- (Rupees one lakhthirty thousand only) from 2848 HeadConstable Sekar working in Chennai, Madhavaram Police Station and acted in apreplanned manner in handing over the same toconstable 1508 Arul serving in ChennaiCommando forces as bribe. Charge 4: Committed condemnable act ofreceiving a huge amount as bribe and acted infavour of candidates for the test throughSecurity personnel by misusing his officialauthority in the operations of the aboveRecruitment Board in Gr.II Constables (Maleand Female) for the year 2003-2004 conductedby Tamil Nadu Uniformed Services RecruitmentBoard held on 27.03.2005 and 01.06.2005." https://hcservices.ecourts.gov.in/hcservices/

After appointment of an Enquiry Officer, enquiry wasconducted and after supplying documents to the appellant, witnesses were examined, in which the appellant has participatedand Enquiry Officer submitted his final report. It is, after theenquiry was completed, the impugned show cause notice enclosingthe enquiry report, was issued and at that stage, challenging thesaid show cause notice, the present writ petition came to befiled.

The learned counsel appearing for the appellant hasraised an issue that in respect of the same charges on whichdisciplinary proceedings has been initiated against theappellant, criminal complaint has been given and in fact, FirstInformation Report has been filed on 08.12.2005, charging theappellant under Sections 120 (b), 457, 380, 166, 409 IPC andunder Section 13 (1)(c)&(d) of the Prevention and Corruption Act,1988 and the said criminal complaint was given against 87 PoliceOfficers, in which the appellant is one among them. Therefore, according to the learned counsel, since the criminal case and thedepartmental proceedings are on the same set of facts, thedisciplinary proceedings must be postponed or stayed till thedisposal of the criminal proceedings, since according to him, anydisclosure of defence by the appellant in the departmentalproceedings will affect his defence in the criminal case.

To substantiate his contention, the learned counselwould rely upon the judgement of the Division Bench rendered in Indian Overseas Bank vs. P. Ganesan (2006 (1) CTC 689). That wasa case of dispute between two rival Associations, in the name of Indian Overseas Bank Scheduled Caste/Scheduled Tribe Employees'Welfare Association and the subsequent Association called AllIndia Overseas Bank Schedule Caste and Schedule Tribe Employees'Welfare Association floated by one Mr.A.Krishnan, who was an Office bearer of the previous Association. There was a physicalassault on the office bearers of the writ petitionerAssociation by one Mr.L.Balasubramaniam, President of All IndiaOverseas Bank Employees' Association and the writ petitionerAssociation's office bearers were hospitalised. The saidMr.L.Balasubramaniam, having attacked the writ petitionerAssociation's office bearers, had lodged a private complaint andthere was also a counter complaint against L.Balasubramaniamunder Sections 341 and 323 IPC read with Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 and the same was registered in Crime No.163 of 2005 andcharge sheet was also filed before the XIV MetropolitanMagistrate, Egmore, Chennai.

Even in the case of Kusheshwar Dubey vs. Bharat CokingCoal Ltd. (1988 (2) LLJ 470), while staying the disciplinaryproceedings on the basis that the criminal action anddisciplinary proceedings are grounded upon the same set of facts, the Supreme Court has clearly held that there cannot be a hardand fast rule or straight-jacket formula without having regard tothe particularities of the individual situation, holding in thefollowing words: "The view expressed in the three cases ofthis Court seems to support the position thatwhile there could be no legal bar forsimultaneous proceedings being taken, yet, there may be cases where it would beappropriate to defer disciplinary proceedingsawaiting disposal of the criminal case. Inthe latter class of cases it would be open tothe delinquent employee to seek such an orderof stay or injunction from the Court. Whether in the facts and circumstances of aparticular case there should or should not besuch simultaneity of the proceedings wouldthen receive judicial consideration and the Court will decide in the given circumstancesof a particular case as to whether thedisciplinary proceedings should beinterdicted, pending criminal trial. As we https://hcservices.ecourts.gov.in/hcservices/ have already stated that it is neitherpossible nor advisable to evolve a hard andfast, straight-jacket formula valid for allcases and of general application withoutregard to the particularities of theindividual situation. For the disposal ofthe present case, we do not think it isnecessary to say anything more, particularlywhen we do not intend to lay down any generalguideline. In the instant case, the criminal action andthe disciplinary proceedings are groundedupon the same set of facts. We are of theview that the disciplinary proceedings shouldhave been stayed and the High Court was notright in interfering with the Trial Court'sorder of injunction which had been affirmedin appeal. " (Emphasis supplied)

In a similar circumstance, the Supreme Court has heldthat stay of disciplinary proceedings till conclusion of criminaltrial cannot be a matter of course. That was the judgement in State of Rajasthan vs. B.K. Meena and others (1996 (6) SCC 417 :1997 (1) LLJ 746). The Supreme Court, after analysing all thejudgements on this aspect, including the judgement rendered in1988 (2) LLJ 470 (cited supra), has categorically held that thecriminal proceedings and disciplinary proceedings are distinctand different in standard of proof, mode of enquiry, rulesgoverning enquiry, etc., held in the following operative words. "14. ...... While it is not possible toenumerate the various factors, for andagainst the stay of disciplinary proceedings, we found it necessary to emphasise some ofthe important considerations in view of thefact that very often the disciplinaryproceedings are being stayed for long periodspending criminal proceedings. Stay ofdisciplinary proceedings cannot be, andshould not be, a matter of course. All therelevant factors, for and against, should beweighed and a decision taken keeping in viewthe various principles laid down in thedecisions referred to above. "The Supreme Court has further observed,"17. There is yet another reason. Theapproach and the objective in the criminalproceedings and the disciplinary proceedings, is altogether distinct and different. In thedisciplinary proceedings, the question iswhether the respondent is guilty of such https://hcservices.ecourts.gov.in/hcservices/ conduct as would merit his removal fromservice or a lesser punishment, as the casemay be, whereas in the criminal proceedingsthe question is whether the offencesregistered against him under the Preventionof Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon enquiryand trial in both the cases are entirelydistinct and different. Staying ofdisciplinary proceedings pending criminalproceedings, to repeat, should not be amatter of course but a considered decision. Even if stayed at one stage, the decision mayrequire reconsideration if the criminal casegets unduly delayed. "

Again, in a recent judgement in T.N.C.S. CorporationLtd., and others vs. K. Meera Bai (2006 (2) SCC 255), the Apexcourt has clearly spelt out the dissimilarity between thecriminal proceedings and the departmental enquiry, even whiledealing with the situation of a delinquent officer acquitted in acriminal case, as to whether he was entitled to automaticreinstatement, based on the judgement of the Supreme Court in Capt.M. Paul Anthony vs. Bharat Gold Mines Ltd., (AIR 1999 SC1416 : 1999 (3) SCC 679). The Supreme Court in the judgementrendered in Uttaranchal Road Transport Corporation and others vs. Mansaram Nainwal (2007 (1) Law Weekly 99), has clearly held that, on factual scenario, Paul Anthony's case (cited supra) isdifferent, and the position in law relating to acquittal incriminal case and question of reinstatement has been dealt within Union of India and another vs. Bihari Lal Sidhana (1997 (4)SCC 385), wherein it was held that after acquittal of adelinquent, there was no question of automatic reinstatement intothe service and the factual aspects have to be taken intoconsideration. In view of the above said legal position, we holdthat the judgement of the Division Bench rendered in 2006 (1) CTC689 (cited supra) was only with reference to the peculiar factsand circumstances of the case as stated above and cannot be takenas a general law in all cases of concurrent disciplinaryproceedings and criminal cases.